Szczebelska (A Minor) v Health Service Executive

Factual and Procedural Background

The Plaintiff, a minor represented by her mother and next friend, brought proceedings against the Defendant concerning scarring caused by admitted negligence. The Court assessed the likely lifelong effects of the scar, including cosmetic concerns, sun sensitivity, and the need for camouflage products. [1][2][3][4][5]

The High Court assessed general damages and determined the Plaintiff’s entitlement to costs. The Court of Appeal subsequently dismissed the Defendant’s appeal in an ex tempore judgment. [6][7][8][9][10]

Legal Issues Presented

1. What level of general damages fairly and proportionately compensated the Plaintiff for her facial scarring and its anticipated lifelong effects? [11][12][13][14][6]
2. Whether the Plaintiff’s claim fell within the appropriate High Court jurisdiction and whether she should receive costs on the High Court scale. [7][15][16][17]

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff relied on the guidance concerning the difficulty of assessing facial injuries involving cosmetic defects or disfigurement. [12]
• The Plaintiff argued that the proceedings had reasonably been commenced and maintained in the High Court, given the uncertainty surrounding the future effects of the injury. [7][16]
• The Plaintiff relied on Milmoe v Chatzis & Anor concerning costs where no warning letter had been served. [7]

Defendant's Arguments

• The Defendant emphasised that the scar was situated beneath the hairline. [3]
• The Defendant relied on a report said to be definitive and submitted that the Plaintiff could have assessed her position at an earlier stage. [7]
• The Defendant argued that the Plaintiff should not receive costs on the High Court scale and that a differential costs order should be made. [7][16][17]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court treated the assessment as difficult because the Plaintiff was very young and her future appearance, lifestyle, employment, and reaction to the scar could not be predicted over a life expectancy of more than 85 years. [2][3][5][14]

The Court considered that the scar was not excessively disfiguring and was partly covered by the hairline, but noted that its visibility, possible effect on hairstyles, sun sensitivity, and the need for camouflage could become more significant as the Plaintiff aged. [3][18][19][20][21]

The Court considered the Guidelines’ range for moderate scarring but concluded that they did not fully capture the uncertainty and possible long-term effects in this case. The Court therefore sought a fair and proportionate figure, without relying on psychological evidence that was not available. [13][14]

The Court assessed general damages at €45,000. [22][6]

On costs, the Court rejected the submission that the Plaintiff should be penalised because proceedings had been commenced in the High Court when she was two. The Court considered that the future consequences were uncertain, that the Plaintiff had acted reasonably, and that the Defendant’s jurisdictional argument did not justify withholding High Court costs or making a differential costs order. [7][15][16][17]

Holding and Implications

GENERAL DAMAGES AWARDED: The Court awarded the Plaintiff €45,000 in general damages. The total award was €56,434. [6][7]

The Defendant was directed to pay €500 for costs and outlays incurred by the Plaintiff’s parents, with the balance of €55,934 paid into court for the Plaintiff. The order included reserved and discovery costs. [23][8]

The order was stayed for 21 days and pending any appeal, subject to interest at the statutory rate. The Defendant’s appeal was later dismissed by the Court of Appeal. [9][10]

No broader implication was discussed and no new precedent was stated in the opinion.