Childhood Scarring: Lifelong Effects Can Justify Above-Band Damages and High Court Costs

1. Introduction

This decision concerns the assessment of compensation for a young child whose forehead was scarred during a medical procedure at birth. The child sued the Health Service Executive through her mother and next friend. Negligence in causing the scar was admitted, leaving the court to determine damages and the appropriate costs order.

The central difficulty was temporal: the court had to value an injury whose practical and cosmetic consequences might continue for more than eighty years, although the child was presently too young to explain those consequences fully. The scar was partly concealed by her hairline and was not excessively disfiguring, but it would require continuing attention and could influence future choices about appearance.

The judgment is significant in two connected respects. First, the court awarded €45,000 in general damages after discussing a moderate-scarring guideline band of €7,000–€30,000. Secondly, although the total recovery fell below the ordinary Circuit Court personal injuries limit, the court awarded High Court costs and refused a differential costs order. Both conclusions rested heavily on the reasonable uncertainty surrounding this particular child’s future.

2. Material Facts and Evidence

The claimant was attending senior infants when damages were assessed. The judge saw the scar and spoke to her, but considered that she could not meaningfully articulate its present or future significance.

The evidence and observations material to the assessment included:

• Location and visibility: much of the scar was beneath the existing hairline, but part remained visible. The court declined to assume that the child would retain the same hairstyle throughout life.
• Present effects: she was not particularly conscious of the mark. No identified task or occupation would be prevented by the injury.
• Long duration: a life expectancy in the region of eighty-five years or more was not disputed.
• Camouflage requirements: a specialist skin camouflage practitioner estimated approximately ten minutes to apply the products and two minutes to remove them.
• Sun sensitivity: scar tissue required additional care during exposure to sunlight, including sun protection beneath camouflage products.
• Psychological evidence: none was available. The judge expressly declined to compensate for psychological consequences on an unsupported basis.
• Original pain: the court also recognised the unnecessary pain associated with the injury and stitches, notwithstanding the claimant’s inability to remember it.

These features distinguished the claim from one concerned solely with the present visual prominence of a scar. The court was also assessing the burden of managing it over a lifetime.

3. Summary of the Decision

The judgment does not itemise the €11,434 difference between general damages and the total award. The €500 payment direction formed part of the allocation of the total award, rather than an additional damages award.

The court directed payment within twenty-eight days and granted a twenty-one-day stay, continuing until determination of any appeal. The stay was conditional on interest accruing at the Courts Act 1981 rate from the judgment date until payment into court.

A post-judgment note records that, on 19 October 2026, the Court of Appeal—Faherty, McDonald and Sanfey JJ—dismissed the defendant’s appeal in an ex tempore judgment. No separate appellate reasons or neutral citation are reproduced.

4. The Personal Injury Guidelines and the Above-Band Award

The Guidelines as the governing framework

The court recognised the Personal Injury Guidelines, adopted by the Judicial Council on 6 March 2021, as forming part of the law. It expressly considered Part 9, including its acknowledgment that assessing facial injuries is particularly difficult where cosmetic defects or disfigurement are involved.

The judge rejected treatment of the injury as merely minor. He then referred to the moderate-scarring category, describing a band of €7,000–€30,000 encompassing a scar capable of camouflage, or small scars whose combined effect does not markedly alter appearance, with a reaction no greater than that of an ordinarily sensitive young person.

Why the court awarded €45,000

The eventual award exceeded the upper figure of the moderate band discussed in the judgment. The central explanation was that the category’s reference to camouflage did not, in the judge’s view, adequately capture the claimant’s likely lifelong experience.

Camouflage was not treated as eliminating the injury. It involved recurring application and removal, together with sun-protection measures. Nor did present concealment beneath hair establish that the scar would remain inconsequential: concealment could itself influence future hairstyle choices.

The reasoning therefore distinguishes between how visible an injury appears now and the burden of living with it over time. An injury may be relatively unobtrusive at one moment while still imposing continuing inconvenience and restrictions.

Nevertheless, the judgment should not be read as creating a general exemption from the Guidelines for children. It does not identify another guideline category, formulate a comprehensive statutory test for departure, or establish a fixed supplement for childhood scarring. Its narrower significance is that the court gave case-specific reasons for concluding that the discussed band did not adequately reflect the anticipated consequences.

5. Legal Reasoning: Future Loss, Evidence and Proportionality

Assessing consequences that have not yet emerged

The claimant’s age created an evidential problem. An adult could describe embarrassment, altered habits and practical inconvenience. This child could not yet explain how the scar might affect adolescence or adulthood. The court therefore relied on the specialist report, inspection of the scar and ordinary experience.

The decision illustrates why an absence of present concern does not necessarily establish an absence of future consequences. However, the judge did not treat every possible disadvantage as compensable. No psychological injury was included without supporting evidence, and no particular occupational restriction was established.

The judgment asks where the burden of proof lies, but does not announce any reversal of that burden. Its approach is better understood as an evaluative response to uncertain future consequences than as a rule requiring the defendant to disprove future harm.

Lifetime duration without a mechanical calculation

Life expectancy was important because the relevant consequences could recur for many decades. The judge considered whether camouflage might be used daily or perhaps every second day, while acknowledging that future habits could not be known.

Those observations did not become an hourly valuation or a mathematical lifetime calculation. The award remained one for general damages: a broad assessment of pain, inconvenience, disfigurement and interference with ordinary life.

Proportionality across the range of injuries

The court expressly considered proportionality, referring to €550,000 as the outer figure for very serious injury. That reference provided a scale against which the award could be checked.

The judge acknowledged that the scar would not prevent any identified activity. Nevertheless, absence of functional disability did not eliminate compensable cosmetic and practical consequences. The assessment sought to recognise those consequences without equating them with profoundly disabling injury.

Gender-based observations: an important qualification

Part of the reasoning relied on general observations that girls and women attach greater significance to appearance. The court also considered the mother’s apparent confidence when reflecting on the child’s possible future attitude.

These were judicial impressions, not findings supported by psychological evidence. They should not be converted into a categorical rule that comparable injuries necessarily attract higher damages for female claimants. The more transferable reasoning concerns the individual claimant’s scar, expected duration, management needs and possible restrictions on appearance. Future cases would benefit from evidence addressing those matters directly rather than assumptions based on sex or parental presentation.

6. Precedents Cited

Delaney v The Personal Injuries Assessment Board & Ors [2024] 1 ILRM 189 [2024] IESC 10

The court cited this decision when explaining the legal background to the Personal Injury Guidelines and their present status as part of the law.

Its role was foundational rather than comparative: it supported the premise that the damages assessment had to engage with the Guidelines. It was not cited as a valuation authority for childhood scarring or as support for a €45,000 award.

The judgment does not analyse the separate issues determined in that litigation. Accordingly, its citation should not be used to attribute to the present decision a constitutional or statutory analysis that it did not undertake.

Milmoe v Chatzis & Anor [2025] IECA 149

The claimant relied on this recent Court of Appeal decision during the costs argument. The judgment identifies the absence of a warning letter in that case as a relevant feature, and records agreement that the costs question fell within judicial discretion.

There was a material distinction here: the defendant had sent a letter on 4 November 2025 requiring the claimant to justify proceeding within the High Court jurisdiction. The court nevertheless awarded High Court costs. The warning therefore did not determine the outcome; the judge still examined whether commencing and maintaining the proceedings in that court had been reasonable.

Because the judgment does not reproduce the detailed reasoning or legal test in Milmoe v Chatzis & Anor, it would be unsafe to infer a broader holding from this short reference. Its demonstrated influence was on the discretionary costs assessment, not the valuation of the injury.

No comparable damages decisions

The judge expressly stated that he had no comparators. Neither cited authority supplied a closely matched scarring award. The €45,000 figure therefore emerged from the court’s assessment of the evidence and the Guidelines, rather than an exercise in matching this injury to earlier awards.

7. Costs: A Below-Threshold Award Did Not Make the High Court Choice Unreasonable

The distinction between jurisdiction and costs

The total award of €56,434 was €3,566 below the ordinary €60,000 Circuit Court personal injuries limit. That did not mean the High Court lacked jurisdiction. The issue was whether recovery below that level should lead to costs on a lower scale or another costs consequence.

The court refused to let the final award alone determine the reasonableness of the earlier litigation decision. Proceedings had been commenced when the claimant was approximately two years old, when the eventual significance of the scar was especially difficult to predict.

Reasonableness assessed in context

The defendant argued that a medical report had provided a sufficiently definitive basis to reassess the appropriate forum. The judge rejected that contention because the child’s future experience remained uncertain.

The reasoning was not simply that a child should never suffer adverse costs consequences. Rather, the judge considered it unfair to penalise this claimant and her mother for a decision he regarded as reasonable when made and maintained in the circumstances.

The November 2025 warning letter was acknowledged but did not displace that conclusion. A warning could raise the issue; it did not establish that the claimant’s assessment was unreasonable.

Equality of arms and the tender

The court also referred to equality of arms within an adversarial system. It observed that the defendant had not been obliged to disclose reports and that the court did not know whether the child had been examined at the defendant’s request.

Those observations concerned the practical information available when litigation choices were made. They were not findings that the defendant had breached a disclosure obligation.

The judge was told of a tender and understood it to have fallen short of the ultimate award. Its amount and any earlier ruling concerning it were not identified. The judgment therefore supplies no basis for a general proposition about the legal consequences of tenders.

Ultimately, the defendant was ordered to pay High Court costs, including reserved and discovery costs. The request for a differential costs order was also rejected.

8. Potential Impact and Limits

The decision offers several practical lessons for future personal injury litigation:

1. Present concealment is not conclusive. Courts may examine whether hiding a scar creates its own continuing burden or constrains appearance choices.
2. Camouflage evidence should address practical use. Application time, removal, sun protection and likely frequency may matter alongside the scar’s dimensions and visibility.
3. Childhood claims require careful future assessment. Limited present awareness does not necessarily measure lifelong impact, although unsupported psychological harm remains distinct.
4. An above-band award requires explanation. This judgment’s reasoning is fact-sensitive; it does not make the Guidelines optional.
5. Forum decisions should not be judged solely by the eventual award. Genuine valuation uncertainty may justify High Court costs even where damages ultimately fall within the Circuit Court limit.
6. Warnings remain relevant but not decisive. Their significance depends on the wider evidence and the reasonableness of continuing in the chosen court.

The recorded dismissal of the appeal confirms that the defendant’s challenge did not succeed. Without the appellate reasons, however, it cannot establish that every observation in the High Court judgment was endorsed or that a wider appellate rule was formulated.

9. Complex Concepts Simplified

Next friend

An adult who conducts proceedings on behalf of a child. The child remains the claimant.

General damages

Compensation for consequences not readily proved by receipts, such as pain, disfigurement and loss of enjoyment of life.

Guideline band

A monetary range associated with a described category of injury. Applying it requires attention to the claimant’s actual circumstances.

Proportionality

Keeping an award consistent with the seriousness of the injury and the wider scale of compensation for other injuries.

High Court costs and differential costs

The former concerns recovery on the High Court costs scale. A differential costs issue concerns a possible adjustment reflecting litigation in a higher court than the claim warranted.

Tender

A formal settlement mechanism that may affect costs, depending on the applicable rules and the result achieved.

Stay

A temporary suspension of an order’s operation or enforcement. Here, the stay was conditional on interest accruing.

Payment into court

Payment into a court-controlled fund to protect the child’s compensation.

10. Conclusion

The judgment treats childhood scarring as a potentially lifelong management burden, not simply a cosmetic condition assessed at one moment. That approach supported €45,000 in general damages despite the lower moderate-scarring band discussed by the court.

Its costs ruling likewise resists hindsight: a below-threshold recovery did not make a reasonably chosen High Court action unreasonable. The decision’s broader value lies in its insistence on individual assessment, while its fact-specific reasoning limits any claim that it establishes an automatic damages uplift or costs protection for children.