Medical Alert
The HSE has indicated that it will appeal a High Court cerebral palsy award to the Supreme Court after losing an appeal against the Decision of the High Court.
The Facts
On 12th July 2006, Gill Russell was born at the Erinville Hospital in Cork suffering from dyskinetic cerebral palsy. The cause of his injury was described as a “prolonged and totally chaotic” delivery by his legal representatives after his mother – Karen Russell from Aghada in County Cork – had undergone a symphysiotomy to assist with the birth.
The compensation Award
Personal Injury
On her son´s behalf, Karen Russell made a claim for compensation against the Health Service Executive (HSE). liability was admitted and, in 2012, Gill received an interim High Court cerebral palsy award of €1.4 million. This was followed two years later with a further High Court cerebral palsy award of €13.5 m. Mr. Justice Cross declared that he would calculate special damages using a significantly lower discount rate of 1% compared to the 3% discount rate widely used previously.
Monies for future care and expenses have usually been awarded by the Irish courts on the assumption that the monies will gain interest when invested of 3 per cent per annum and there is a built-in discount to allow for that. This had the effect of producing an Award for special damages in the action of €13.5 m. Had the 3% rate been used it is estimated that the special damages awarded in the action would have amounted to the lesser sum of €9 m.
The Court of Appeal Decision
However, on the 5th November 2015 a three-judge panel at the Court of Appeal upheld the Decision of Mr Justice Cross – stating that, using the previous formula, a catastrophically injured person would have to take “unjust and unacceptable” investment risks to ensure their financial security. The judges ruled that it was not the courts´ function to inquire what a claimant was likely to do with their award for the purposes of determining its value.
Medical Analysis
Handing down the verdict of the Appeals Court, Ms Justice Mary Irvine said that a seriously injured child should not be compared with an investor for the purposes of deciding what should be a prudent investment. Furthermore, she added, the HSE and State Claims Agency would not be in this predicament had the government not failed over decades to enact laws that would allow a structured compensation payment system.
How does this affect future Cases?
The Decision in the Gill Russell case was made in circumstances where the Plaintiff had been catastrophically injured and where a Compensation Award was being made for someone for lifetime who was of a relatively young age. While we must await the Decision of the Supreme Court in due course, the question now will be that, if confirmed by the Supreme Court, will this calculation be used for all other Compensation Awards where there are future losses to be calculated? It is no surprise therefore that the Decision is being once again appealed.