An unsuccessful challenge to a High Court award of cerebral palsy compensation is likely to be taken to the Supreme Court by the Health Service Executive.
Gill Russell from Aghada in County Cork was born at the Erinville Hospital on 12th July 2006, suffering from dyskinetic cerebral palsy after a “prolonged and totally chaotic” delivery. Gill´s mother – Karen – made a compensation claim against the Health Service Executive (HSE) for medical negligence, and received an interim High Court award of cerebral palsy compensation in 2012.
In December 2014, Gill´s compensation claim against the HSE was settled with a lump sum High Court award of cerebral palsy compensation amounting to €13.5 million. The HSE appealed the value of the High Court award of cerebral palsy compensation – arguing that Mr Justice Kevin Cross had used a lower rate of interest than was traditionally used in Irish courts to calculate the future value of the settlement.
At the Appeals Court this week, a three-judge panel upheld Judge Cross´ settlement. The judges said that using the “traditional” formula would mean that a catastrophically injured person would have to take “unjust and unacceptable” risks with investing the lump sum to ensure their financial security. They added that a seriously injured child should not be compared with a prudent investor.
Announcing the Appeals Court verdict, Ms Justice Mary Irvine said 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. She added that the Russell family and the HSE would not be in court had the government not gone back on promises to introduce legislation that would allow for a periodic payment system of compensation.
Unfortunately, the decision of the Appeals Court is unlikely to end the dispute about the High Court award of cerebral palsy compensation. Warning that the revised formula sets a dangerous precedent that could cost the State Claims Agency and the insurance industry up to €100 million annually, the HSE has indicated that it will take the High Court award of cerebral palsy compensation to the Supreme Court.