Barry (A Minor) v National Maternity Hospital

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 27 May 2011
• Neutral Citation: [2011] IEHC 225
• Date: 27 May 2011
• Court: High Court
• Docket Number: [2007 No. 8367 P]

[2011] IEHC 225

THE HIGH COURT

[No. 8367 P/2007]

Barry (a minor) & Campbell v National Maternity Hospital & Lenehan

BETWEEN

CHARLOTTE BARRY (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND AISLING CAMPBELL

PLAINTIFF

AND

THE NATIONAL MATERNITY HOSPITAL

AND

PETER LENEHAN

DEFENDANTS

ROBERTS v JOHNSTONE 1989 QB 878

DOHERTY v BOWATERS IRISH WALL BOARD MILLS LTD 1968 IR 277

WILLIT v NORTH BEDFORDSHIRE HEALTH AUTHORITY 1993 PIQR Q 166

DAMAGES

Accommodation

Compensation - Minor - Assessment of damages for accommodation needs of minor plaintiff with disability during expected lifetime - Principles to be applied - Whether value of property at which plaintiff resided to be taken into account in assessing damages and if so, to what extent - Whether enhancement value of new property adapted to meet needs of plaintiff to be taken into account in assessing damages and if so, to what extent - Medical negligence - Doherty v Bowaters Irish Wallboard Mills Ltd. [1968] IR 277 applied; Roberts v Johnstone [1989] QB 878 distinguished; Willett v North Bedfordshire Health Authority [1993] PIQR Q166 approved - Damages assessed (2007/8367P - O'Neill J - 27/5/2011) [2011] IEHC 225

Barry (an infant) v National Maternity Hospital

Facts: The plaintiff claimed damages for negligence and breach of duty of the defendants arising from severe asphyxiation at birth resulting in her suffering Cerebral Palsy. Damages had been agreed by the parties save for one item, compensation for her accommodation needs during her expected lifetime. Since her birth she had resided with her parents. It was common case that the house was not suitable to meet her future accommodation needs. Her life expectancy was agreed to be thirty-five years. The question arose as to whether the plaintiff was only entitled to recover additional expenses of accommodation above and beyond the expenses she would have incurred but for her injury.

Held by O'Neill J. that it was necessary to approach compensation for the plaintiff in respect of her accommodation needs on the basis that she had to be compensated in respect of those needs for the entre duration of her lifespan. She was entitled to receive compensation which would put her on a basis independent of her parents but with accommodation appropriate to her needs as a disable person. Compensation for the additional cost of accommodation over the entire lifespan had to be approached on the basis that the plaintiff was entitled to the entirety of that for the adult portion of her life. Credit had to go to the defendants for the value of the benefit of accommodation provided by her parents in respect of the childhood part. It would be wholly unjust to the plaintiff to ascribe to her the entire value of the property as it were for her exclusive benefit. A just apportionment to reflect her occupation of it would be a one-sixth share to reflect the value of the house as family home. This share had to be reduced by one half. She would be awarded a sum of Eur 735,177.70 as compensation for her future accommodation needs.

Reporter: E.F.

1 JUDGMENT of O'Neill J. delivered on the 27th day of May, 2011

2 1. The plaintiff in this case, who was born on 9 ^th September, 2005, sustained a severe hypoxic-ischemic insult during the course of labour and delivery, as a consequence of which she was severely asphyxiated at birth, requiring resuscitation by way of being intubated and ventilated. The plaintiff developed acute hypoxic-ischemic encephalopathy and suffers a severe syndrome of Cerebral Palsy (Spastic Quadriplegia) with marked neurodevelopmental difficulties.

3 2. The plaintiff claims that the foregoing was the result of the negligence and breach of duty of the defendants and sues for damages. The first named defendant has admitted liability. The action against the second named defendant has been struck out with no order. The damages to be paid by the first named defendant have been agreed, save for one item, namely, compensation for the plaintiff's accommodation needs during her expected lifetime. The other items of damages have been agreed and have been approved by the court.

4 3. Since her birth, the plaintiff has resided with her parents at 7, O'Connell Gardens, Sandymount in Dublin. Her father, Robert Barry, was born on 4 ^th May, 1973, and his wife, Aisling Campbell, the plaintiff's mother, was born on 25 ^th July, 1974. They have lived at the foregoing address since December 2003. Amelia Barry, the plaintiff's sister, was born on 30 ^th April, 2008. Robert Barry's and Aisling Campbell's families live in the Sandymount area, very close to the current family residence, and the plaintiff attends school in that area, and her social integration has all taken place in the Sandymount area.

5 4. Although alterations were carried out to the house at 7, O'Connell Gardens, it is commoncase that this house is not suitable to meet the future accommodation needs of the plaintiff, and for that purpose, a suitable property will have to be acquired. Because of the close family connections that the plaintiff's parents have in the Sandymount area, and the multi-faceted supports they get from their respective, extended families, the plaintiff's parents are seeking to acquire a property in that area, which will be suitable for the accommodation needs of the plaintiff for the future.

6 5. A sum of €875,000 has been agreed between the parties as being the cost of acquiring such a property in that area. A further sum of €283,000 has been agreed as being the cost of adapting the acquired property to meet the needs of the plaintiff. Thus, the total cost of acquiring and adapting such a property is agreed at €1,158,000. It is further agreed that the expenditure of the said sum of €283,000 to adapt the property would enhance the value of it by the agreed figure of €135,000. The value of 7, O'Connell Gardens, Sandymount, is also agreed in the sum of €550,000.

7 6. The plaintiff's life expectancy is agreed at thirty-five years, and damages for the plaintiff's loss of earnings are agreed in the sum of €350,000.

8 7. The plaintiff claims the entire sum of €1.158,000 as compensation, on the basis that if she is awarded anything less than that, there will be a shortfall from the sum necessary to purchase and adapt a house for her future accommodation, and to make up this shortfall, the plaintiff will be forced to resort to damages awarded under other headings e.g. general damages or damages for loss of earnings, to enable her to purchase what is agreed to be necessary accommodation for her. It is submitted, for the plaintiff, that to satisfy the principle of restitution in integrum, it is necessary that the plaintiff be compensated in this way, otherwise, she will be forced, in effect, to compensate herself by using damages awarded under one heading to make good losses caused by the defendant as tortfeasor under separate headings with the result that plaintiff would be forced to indemnify the defendants in respect of part of its wrongdoing.

9 8. The defendants' approach to this aspect of the damages is entirely different. For the defendants, it was submitted by Mr. McGrath S.C., relying upon the approach taken by the Court of Appeal in the United Kingdom in the case of Roberts v. Johnson [1989] C.A., p. 878, that the plaintiff is only entitled to recover the additional expenses of accommodation above and beyond the expenses she would have incurred, but for her injury, and the measure of such additional expense is either the loss on the investment of capital used to meet that additional expense, or, alternatively, the cost of acquiring capital to meet that expense, using a real rate of return of 3% to calculate same. In addition, the defendants submit that the agreed value of the plaintiff's parents' must be deducted, as must be the enhanced value resulting from the adaptations to be carried out to the property to be acquired.

10 9. In deducting the agreed value of the existing home, the defendants say that if this is not done, in effect, an extraordinary role reversal occurs, in the sense that instead of the plaintiff's parents providing accommodation for the plaintiff, as would be their normal parental obligation until she reached adulthood, the plaintiff would become the provider of accommodation for her parents and any other siblings. In arguing for a deduction of the agreed value of the existing home, the defendants acknowledge that the plaintiff's parents will be entitled to have an interest in the property to be acquired, commensurate with their contribution to its acquisition. The defendants further submit that the agreed enhanced value, namely, €135,000, resulting from the adaptation of the new property, must be deducted as being extra to the additional expense of accommodation resulting from the plaintiff's injuries, in effect, a capital bonus. The defendants, thus, calculate their liability under this heading of Damages as follows:

11 €875,000

12 - €550,000

13 €325,000 × 3% (real rate of return) = €9,750.00

14 This figure is then multiplied by the plaintiff's multiplier, which is 20.3, which produces a capital value of €197,925. To this figure is then added the sum of €283,000, namely, the cost of conversion or adaptation, which then comes to €480,925. This figure is then reduced by €135,000, which produced a final figure of €345,925, which the defendants are agreeable to round up to €350,000 as being their liability in respect of the cost of future accommodation for the plaintiff.

15 10. For the plaintiff, this approach was rejected by Mr. Denis McCullough S.C. and Mr. Antoniotti S.C. on several grounds. In the first instance, they say the defendants' approach wholly fails to adequately compensate the plaintiff for the cost of accommodation, which, it is accepted, is...