Milmoe v Chatzis & Anor (Unapproved)

Factual and Procedural Background

This appeal arises from a personal injuries action in the High Court where the Plaintiff obtained judgment against two Defendants, a consultant surgeon and a medical clinic, in the sum of €44,460. The Plaintiff underwent breast implant surgery in 2007 and later sought removal of the implants and a breast uplift procedure carried out in November 2015 at the Defendant clinic's arrangement. Post-surgery, the Plaintiff experienced complications including a continuing bleed and infection attributed to a failure to provide prophylactic antibiotics after discharge. The Plaintiff claimed negligence in the post-surgical care, particularly the lack of timely antibiotic treatment, which allegedly caused increased scarring and suffering.

The first Defendant, the surgeon, failed to file a defence and judgment was entered against him. The second Defendant, the clinic, defended the claim. The High Court awarded damages for general harm, additional care costs, and part of the surgery costs, but declined to make a differential costs order despite the award falling within the jurisdiction of the Circuit Court. The clinic appealed both the quantum of damages and the costs decision.

Legal Issues Presented

1. Whether the quantum of damages awarded by the trial judge, particularly the figure of €40,000 for general damages, was appropriate.
2. Whether the trial judge erred in refusing to make a differential costs order under section 17 of the Courts Act, given that the award was within the Circuit Court's jurisdiction.

Arguments of the Parties

Appellant's Arguments

• The appellant challenged the trial judge’s assessment of damages, contending that the expert evidence did not support a precise percentage attribution of the increased scarring to the infection, thus undermining the basis for the 35% figure applied.
• The appellant argued that the High Court erred in awarding 50% of the surgery costs to the Plaintiff.
• The appellant contended that the trial judge incorrectly refused to grant a differential costs order despite the award falling within the Circuit Court’s monetary jurisdiction.

Respondent's Arguments

• The respondent maintained that the trial judge was entitled to apply common sense and judicial discretion in assessing damages despite the absence of precise expert quantification of the infection’s contribution to scarring.
• The respondent opposed the differential costs order, emphasizing the complexity of the case and the lack of prior warning to the Plaintiff regarding costs jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reilly v. Moir & Ors [2009] IEHC 164	Establishing a baseline figure for general damages in breast scarring cases.	The court relied on this case to identify a full value figure (€75,000 adjusted to €90,000) from which to calculate the 35% attributable to infection-related scarring.
Best v. Wellcome Foundation Limited [1993] 3 IR 421	Judicial role in weighing conflicting expert evidence and applying common sense in damage assessment.	The court cited this precedent to justify its discretion in attributing 35% contribution to infection despite the expert’s inability to specify a precise figure.
Moin v Sicika [2018] IECA 240, [2021] 3 IR 585	Requirement for warning letters and consideration of differential costs orders when damages fall within lower court jurisdiction.	The court referenced this case to explain the trial judge’s discretionary refusal to make a differential costs order due to absence of a prior warning letter and interaction on jurisdictional issues.
O'Malley v McEvoy (cited within Moin v Sicika)	Interaction and warning regarding jurisdiction and differential costs orders.	Used to support the reasoning that the absence of prior interaction or warning justified refusal of a differential costs order.

Court's Reasoning and Analysis

The Court of Appeal carefully reviewed the expert evidence, particularly that of the Plaintiff's expert surgeon, noting the absence of contradictory expert testimony. Although the expert could not precisely quantify the infection's contribution to scarring, the Court emphasized the trial judge's role in applying common sense and judicial discretion to assess damages fairly. The Court rejected the appellant’s argument that no damages should be awarded without precise expert quantification, highlighting the necessity of a just result.

In calculating damages, the Court accepted the trial judge’s approach of attributing 35% of the scarring to the infection and using a precedent case as a benchmark for full value damages, adjusted for inflation. The Court found the award of 50% of the surgery costs reasonable given the Plaintiff did not receive the full service paid for.

Regarding costs, the Court acknowledged the statutory framework favoring remittal to the Circuit Court when damages fall within its jurisdiction but upheld the trial judge’s discretion in refusing a differential costs order. The refusal was based on the complexities of the case, the lack of a prior warning letter, and absence of interaction about jurisdiction, consistent with established case law.

Holding and Implications

The Court of Appeal DISMISSED THE APPEAL, affirming the High Court’s award of damages totaling €44,460 and the decision on costs. The ruling confirms the trial judge’s discretion in assessing damages where expert evidence is imprecise but indicates negligence and injury, and in exercising discretion regarding differential costs orders when procedural safeguards such as warning letters are absent.

The direct effect of this decision is to uphold the Plaintiff’s award and costs order. No new legal precedent was established beyond reaffirming existing principles on judicial discretion in damage assessment and costs jurisdiction.