Browne v Van Greene

JurisdictionIreland
JudgeMr. Justice Noonan
Judgment Date24 September 2020
Neutral Citation[2020] IECA 253
Date24 September 2020
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 2018/181
BETWEEN/
MARGARET BROWNE
PLAINTIFF/APPELLANT
- AND -
PETER VAN GEENE AND MOUNT CARMEL MEDICAL GROUP (KILKENNY) LIMITED TRADING AS AUT EVEN HOSPITAL
DEFENDANTS/RESPONDENTS

[2020] IECA 253

Noonan J.

Power J.

Binchy J.

Record Number: 2018/181

High Court Record Number: 2012/3367P

THE COURT OF APPEAL

Medical negligence – Damages – Costs – Appellant appealing the quantum of the award for damages by the High Court – Whether the award for general damages was proportionate

Facts: The defendants/respondents, Dr Van Geene and Mount Carmel Medical Group (Kilkenny) Ltd, in an action for medical negligence, withdrew the issue of liability and the case proceeded as an assessment of damages, in which ultimately the plaintiff/appellant, Ms Browne, failed to beat the lodgment. The plaintiff’s appeal to the Court of Appeal concerned the quantum of the award by the High Court (Barr J) and the proper allocation of costs following that award. The respondents cross-appealed against the refusal by the trial judge of their application to have the plaintiff’s claim dismissed pursuant to s. 26 of the Civil Liability and Courts Act 2004. On the issue of general damages, the essential ground of appeal was that the award was not proportionate in relation to the scale of compensation determined by the courts in cases of similar severity and intensity. The plaintiff submitted that the judge failed to have proper regard to the likely sequelae of the plaintiff’s injuries in assessing future special damages. On the costs issue, the plaintiff’s grounds largely replicated the arguments raised in the High Court. In addition, the plaintiff claimed that as the initial lodgment included recoverable benefits of circa €55,000, this amount should be subtracted from the award meaning that the plaintiff had in fact beaten the lodgment. In the respondents’ notice, they cross-appealed the refusal of the trial judge to accede to the s. 26 application on the grounds that the trial judge erred in holding that the plaintiff had not given evidence that was false or misleading in a material respect whether on affidavit or under oath as a witness. It was also said that he erred in failing to attach any or any adequate weight to an alleged failure by the plaintiff to mitigate her loss in failing to comply with medical directions and failing to seek employment.

Held by Noonan J that the award of €185,000 for general damages in this case was not so disproportionate as to amount to an error of law. He held that there was credible evidence which entitled the judge to conclude that the plaintiff would in the future be at a competitive disadvantage by virtue of her sequelae and therefore to award a sum on that account. However, he had no hesitation in unequivocally rejecting the plaintiff’s contention that a higher sum should have been awarded under this heading. He agreed with the trial judge’s conclusions on costs. He held that the argument not made in the High Court could not be made for the first time on appeal. He held that the judge was entitled to conclude that the respondents had not discharged the onus of establishing that the plaintiff had given false or misleading evidence in a material respect and that she knew it to be false or misleading, and that this conclusion could not be interfered with on appeal unless it was shown to be unsupported by the evidence. He held that the respondents had not shown that to be the case and he was therefore satisfied that the trial judge’s decision not to accede to the s. 26 application should not be set aside.

Noonan J held that he would dismiss both the plaintiff’s appeal and the respondents’ cross-appeal and affirm the order of the High Court. With regard to costs, his provisional view was that the costs should follow the event in the normal way and the respondents were entitled to the costs of the appeal with the plaintiff being entitled to the costs of the cross-appeal; such costs should be set off against each other and any balance outstanding should be paid to the party entitled thereto.

Appeal dismissed. Cross-appeal dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 24th day of September, 2020
Introduction
1

In this action for medical negligence, the issue of liability was withdrawn by the respondents and the case proceeded as an assessment of damages, in which ultimately the appellant (to whom I will refer as “the plaintiff”) failed to beat the lodgment. The plaintiff's appeal concerns the quantum of the award by the High Court (Barr J.) and the proper allocation of costs following that award. The respondents have cross-appealed against the refusal by the trial judge of their application to have the plaintiff's claim dismissed pursuant to s. 26 of the Civil Liability and Courts Act 2004.

Background
2

The plaintiff was born on the 28th September, 1975 and had complaints in her early thirties which were ultimately diagnosed as arising from endometriosis and cysts on her ovaries. She was advised that the appropriate treatment was a hysterectomy and removal of the ovaries. Accordingly, on the 6th April, 2010 when the plaintiff was 34 years old, the first respondent (“Dr. Van Geene”), a consultant gynaecologist, carried out a total abdominal hysterectomy and oophorectomy at the Aut Even Hospital in Waterford, the second respondent. In the course of this procedure, Dr. Van Geene negligently sutured the plaintiff's left ureter leaving her with very significant symptoms on post-operative discharge from hospital. It took several weeks for this to be identified as the cause of the plaintiff's symptoms and a month later, on the 6th May 2010, she underwent further surgery with a different consultant.

3

This involved bypassing the original ureter by means of a Boari flap. Notwithstanding this procedure, the plaintiff continued to have symptoms of severe pain and discomfort in the following three years and ultimately it was determined that the plaintiff's left kidney was functioning at such a low level that it required surgical removal. Accordingly, she underwent a left nephrectomy in April of 2013. Although she made a reasonable recovery from this surgery, she claims to have significant ongoing symptoms, particularly in relation to her bladder function, which gives rise to urinary frequency and urgency and these symptoms in turn have compromised her life and her ability to work. The extent of her symptoms and their effects were in very considerable controversy at the trial. She also claims to have suffered psychiatric and psychological sequelae which are continuing.

Procedural History
4

The proceedings commenced by the issuing of a personal injuries summons on the 2nd April, 2012. Initially a defence denying liability on behalf of both respondents was delivered but ultimately, the issue of liability was conceded. On the 27th September, 2016, the respondents paid a sum of £280,000 into court by way of lodgment with a denial of liability. Within a week, the plaintiff delivered updated particulars of loss and damage together with a schedule of special damages on the 4th October, 2016. As will subsequently become apparent, it is relevant to set out precisely what the plaintiff said in that document: -

“A. Loss of earnings.

The plaintiff's potential for employment was seriously compromised as a result of the personal injuries sustained. The plaintiff now has severe physical limitations and has a history of inability to attend work, as a result of over five years of having to attend hospital for treatment. She has reduced capacity for prolonged standing and walking. She has difficulty bending, lifting and driving long distances. She has diminished capacity in terms of performing the duties required in previous employment, in which she has experience. If the plaintiff returns to employment, she will only obtain part time, or casual work at the lower quality end of the market. The plaintiff could work short hours as a counter assistant.

The plaintiff was earning circa €26,000 in her last job and is in receipt of Disability Benefit in the sum of €188 per week. The plaintiff could obtain part time or casual employment at a rate of circa €9.15 per hour. If the plaintiff worked twenty hours per week, she would therefore earn €183.00 per week.

If the accident had not occurred, the plaintiff would have earned circa €461.00, net of deductions. As the plaintiff is unfit to work fulltime in her previous employment, or alternative work, she will have a net weekly loss of €278.00…”

5

Although a calculated claim for past loss of earnings was not at that stage advanced, the plaintiff claimed future loss of earnings on an actuarialised basis at sums varying from £266,324 to £340,272 depending on an assumed retirement age of either 65 or 68 and a real rate of return on a 1% or 2.5% basis. It is clear that the delivery of these particulars had a significant impact on the respondents' assessment of the case and its value, because thereafter, in January 2017 the respondents sought to increase the lodgment to €450,000. A motion was issued in that regard by the respondents for liberty to top up the lodgment and that came on for hearing before Cross J. on the 20th January, 2017. In the same motion, the respondents sought an order directing the plaintiff to deliver a notice of an offer of terms of settlement pursuant to s.17 of the Civil Liability and Courts Act 2004. Ultimately, the parties came to terms in relation to this motion and a consent order was made by Cross J. giving the respondents liberty to increase the lodgment, directing the plaintiff to deliver a notice of an offer of terms of settlement and finally, it was, by consent, ordered that the plaintiff pay the costs of the motion.

6

Shortly following the making of this order, the plaintiff delivered updated particulars of loss and damage/schedule of special damages on the 30th January, 2017. Updated...

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4 cases
  • Keating v Mulligan
    • Ireland
    • Court of Appeal (Ireland)
    • 9 November 2022
    ...to suppress the subsequent accident, the question of aggravated damages is unlikely to have arisen. I expressed a similar view in Browne v Van Geene [2020] IECA 253 where the plaintiff made an application for an award of aggravated damages following an unsuccessful section 26 application b......
  • Cloonan v The Health Service Executive
    • Ireland
    • Court of Appeal (Ireland)
    • 3 June 2022
    ...evidence as a whole, he could not but have concluded that his evidence was unreliable. As observed by Noonan J. in Brown v. Van Greene [2020] IECA 253, (at para. 75), the plaintiff's untrue claims and deliberate vagueness and reticence about revealing details of specific activities could no......
  • O'Sullivan v Brozda
    • Ireland
    • Court of Appeal (Ireland)
    • 14 July 2022
    ...Limited [2017] IECA 221, [2017] 2 IR 382, in which Irvine J (as she then was) gave the judgment of the Court and Browne v Van Geene [2020] IECA 253, in which Noonan J gave the only 7 So far as appears to me, the following are the main points to emerge from the terms of section 26 itself and......
  • Waldemar Szczypior v Daly Transport Ltd
    • Ireland
    • High Court
    • 2 February 2022
    ...in Platt have been applied in a number of subsequent cases including Keating v Mulligan [2020] IEHC 47 and Browne v Van Geene & Another [2020] IECA 253, both of which were also opened to me on the The parties' submissions on the s.26 application 65 The defendant submits that the false infor......

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