The Court of Appeal allowed an orthopaedic surgeon’s appeal over costs and ordered that he recover 50% of the costs he incurred defending a medical negligence claim that the High Court had dismissed.
The appeal concerned the High Court’s 28 May 2019 costs order, not the dismissal of the claim. The High Court had found that Helena O’Carroll failed to establish that the surgeon breached his duty of care after treating her for an injury to her right hand, crushed under a heavy mirror. Although the claim was dismissed, the High Court made no order for costs in the surgeon’s favour.
The High Court judge considered that questioning during the trial amounted to an unfounded allegation of fraud against O’Carroll and said the court should mark its disapproval. On appeal, the surgeon challenged the decision to deny him costs, including the trial judge’s view of the cross-examination and the weight given to a pre-trial offer inviting O’Carroll to withdraw her action with no costs.
The Court of Appeal examined questioning about a Facebook photograph from May 2015, which showed O’Carroll wearing a splint at a social event. Counsel questioned whether the image was consistent with her account that the fracture had significantly disabled her and that she had guarded her hand. O’Carroll said she had raised her right arm to show the splint, that her fingers remained affected, and that she had needed a friend’s help to undo her belt when using the toilet that night. The trial judge intervened during the questioning.
The Court of Appeal said a defendant may robustly challenge a claim, but there must be a proper basis for questioning a witness’s truthfulness or honesty. It found that the questioning continued after O’Carroll had explained the photograph, and noted that the line of inquiry was also pursued to some extent during another witness’s evidence. The court accepted that the trial judge could disapprove of the questioning. It also found that the judge had considered the pre-trial letter and was entitled to give it limited weight.
However, the appeal court said that making no order for costs was disproportionate where the surgeon had successfully defended the claim. It said the trial judge should have expressed disapproval in a proportionate way and concluded that allowing the surgeon to recover half his defence costs was appropriate. The court allowed the costs appeal and made an order in accordance with its judgment.