A panel of High Court judges have upheld the offer of a settlement of compensation awarded to a young girl born with cerebral palsy after the HSE appealed, claiming that the compensation package was too much.
In July 2006, Gill Russell, from Aghada in County Cork, was born in the Erinville Hospital, Cork. However, due to extreme mismanagement of her birth by medical staff at the hospital, she was born with dyskinetic cerebral palsy. Her birth was later described as a “prolonged and totally chaotic” delivery in court.
Karen, Gill’s mother, sought legal counsel to claim compensation for her daughter’s injuries. She made a claim for birth injuries due to medical negligence compensation against the hospital and the Health Service Executive.The defendants admitted liability for Gill’s condition, and an interim settlement was awarded to the family by the High Court in Dublin. The case was adjourned for assessment of her future needs.
In December 2014, the case was heard by Mr Justice Kevin Cross of the High Court in Dublin. A final lump sum of €13.5 million was approved by the judge. This was the largest award ever made by the court for a cerebral palsy claim. The settlement was appealed by the HSE and the State Claims Agency. They argued that Judge Cross had used too low a rate of interest to calculate the return investment of the lump sum, and therefore the settlement of compensation was far too high.
The case was heard earlier this month at the Court of Appeals, by a panel consisting of three judges. After both parties made their case, they upheld the settlement of compensation. The judges argued that using a higher rate of interest – which the HSE argues is normal for the court – would result in a severely disabled person taking “unjust and unacceptable risks” by investing their lump sum to safeguard their financial security.
Ms Justice Mary Irvine was one one of the three judges on the panel. After the hearing, she commented that it was not the purpose of the courts to decide how a claimant was going to invest their award when determining its value. The judge also commented that, had the government succeeded in passing legislation that would allow structured, periodic payments, the HSE would not be in this situation.
However, despite the Appeals Court’s ruling, the case is unlikely to be resolved, and the family are likely to end up back in court. The State Claims Agency have warned that the case could set a precedent that could cost the insurance industry up to €10 billion over the next ten years, The HSE have also indicated that they will likely take the case to the Supreme Court. Returning to court means that the family will have to do without the much-needed settlement of compensation for an even longer period of time.