Posted: November 9th, 2015
The HSE have lost an appeal against the amount of compensation paid to a cerebral palsy sufferer, though the case may still proceed to the Supreme Court for a final resolution.
When Gill Russell, from Aghada in Co. Cork, was born on the 12th July 2006, he was diagnosed with dyskinetic cerebral palsy as a result of a “prolonged and totally chaotic” birth when he was delivered at the Erinville Hospital. Karen Russell, Gill’s mother, then proceeded to make a claim for birth injury compensation against the Health Service Executive (HSE). The HSE admitted liability for Gill’s injuries, and then an interim compensation settlement was awarded by the High Court until a dull assessment could be carried out.
In December of last year, the drawn-out claim was eventually resolved for a total of €13.5 million, meaning that this settlement was the largest ever awarded by the High Court for cerebral palsy damages. However, the HSE decided to appeal the award, and claimed that the judge presiding over the case – Mr Justice Kevin Cross – had not used an appropriate rate of interest in his calculations. The HSE stated that Judge Cross had used a lower rate of interest than that which was usual in the Irish courts when dealing with such a case.
When the case was heard at the Appeals Court earlier this month, a panel of three judges upheld the settlement made by the High Court. They said that, if a higher rate of interest were used, the result would mean the injured party would be forced to take “unjust and unacceptable” risks with their investment to ensure future security.
Ms Justice Mary Irvine, one of the three judges on the panel, said that it was not for the courts to determine how the recipient of an award was to invest it. She also commented that the Russell family and the HSE would not be in this circumstance if the government had enforced adequate legislation to allow for periodic payments.
Despite the decision of the Appeals Court, the case is unlikely to have come to a full conclusion. Some spectators warn that this award of compensation has set a precedent that could cost the State Claims Agency and insurers up to €10 billion over the next decade. The HSE has indicated its intentions to bring the case to the Supreme Court.