An award of High Court compensation for cerebral palsy has been upheld on appeal, but the case may still have to go before the Supreme Court to be resolved.
On 12th July 2006, Gill Russell from Aghada in County Cork was born suffering from dyskinetic cerebral palsy following a “prolonged and totally chaotic” delivery at the Erinville Hospital. On her son´s behalf, Karen Russell made a medical negligence compensation claim against the Health Service Executive (HSE) and, after liability had been admitted, Gill was awarded an interim settlement of High Court compensation for cerebral palsy.
In December 2014, the medical negligence compensation claim against the HSE was resolved €13.5 million – the largest ever award of High Court compensation for cerebral palsy. The HSE appealed the settlement of the claim – arguing that Mr Justice Kevin Cross had used a lower rate of interest than was traditionally used in Irish courts to calculate the return to investment of the lump sum.
However, earlier this week at the Appeals Court, a three-judge panel upheld the settlement of High Court compensation for cerebral palsy. The judges said that using the higher rate of interest would result in a catastrophically injured person having to take “unjust and unacceptable” risks with the investment of the lump sum to ensure their financial security.
One of the three-judge panel – Ms Justice Mary Irvine – said it was not the courts´ function to decide how a claimant was likely to invest their award for the purposes of determining its value. She added that the Russell family and the HSE would not be in this position had the government not failed to introduce legislation that would permit structured periodic payments.
The decision of the Appeal Court judges is unlikely to resolve the medical negligence compensation claim against the HSE. Warning that the calculation of High Court compensation for cerebral palsy set a precedent that could cost the State Claims Agency and the insurance industry up to €10 billion over the next decade, the HSE has indicated that it will take the case to the Supreme Court.