Barry v National Maternity Hospital

JudgeMr. Justice John MacMenamin,Mr. Justice Clarke
Judgment Date13 July 2016
Neutral Citation[2016] IESC 41
CourtSupreme Court
Docket Number[S.C. No. 307 of 2011],[Appeal No: 307/2012]
Date13 July 2016

[2016] IESC 41


Clarke J.

MacMenamin J.

[Appeal No: 307/2012]

Denham C.J.

O'Donnell J.

Clarke J.

MacMenamin J.




Damages – Negligence – Compensation – Appellant seeking to appeal against a High Court decision – Whether High Court judge failed to apply the proper approach on accommodation expenses

Facts: The respondent, Ms Barry, was born in the first appellant, the National Maternity Hospital, on the 9th September, 2005. As the result of negligence during the course of labour and delivery, the respondent sustained a severe hypoxic-ischemic insult. She became severely asphyxiated during her birth. She required resuscitation by way of intubation and ventilation. She developed acute hypoxic-ischemic encephalopathy. She now suffers a severe syndrome of Cerebral Palsy (Spastic Quadriplegia), with marked neuro-developmental difficulties. Many of the headings of damage were agreed and settled. They were ruled by the High Court. O?Neill J awarded ?735,000 under?the heading of special accommodation expenses. The first appellant appealed to the Supreme Court against that decision submitting that the judge failed to apply the approach on accommodation expenses said to have been established in the case of?Roberts v Johnstone?[1989] QB 878.

Held by MacMenamin J that, while the judge?s approach was perhaps unorthodox, it was impossible to conclude that any injustice was done. MacMenamin J noted that there had been no cross-appeal and that the outcome was little different from one of the calculations put forward by the first appellant. MacMenamin J stated that his judgment did not, and could not, create any new paradigm for calculation of damages in these cases, still less did it create any further burden on indemnifiers. MacMenamin J held that the Court was simply faced with arriving at a just adjudication on one single case. To his mind, although the approach was unusual, the outcome achieved proper compensation without injustice to either party. MacMenamin J held that he would not, therefore, interfere with the High Court judge?s decision.

MacMenamin J held that he would dismiss the appeal.

Appeal dismissed.

Judgment of Mr. Justice Clarke delivered the 13
1. Introduction

I should start this judgment by indicating that I am in complete agreement with the judgment of MacMenamin J. both as to the result of this appeal and as to his reasoning in concluding that the appeal should be dismissed.


On the basis of the evidence which was before the High Court, the arguments presented to that Court and the arguments made on this appeal, I am satisfied that no other result would be appropriate. However, it seems to me that there is, potentially, another and more satisfactory basis on which to approach the question of damages arising out of a need for enhanced accommodation. As that approach was not the subject of any evidence in the High Court and was not really the subject of any argument either before that Court or this Court, the views which follow are necessarily tentatively expressed. I would leave it to a case in which there was appropriate evidence and in which the issue was fully debated, to reach a definitive conclusion. For the reasons already noted this case is clearly not suitable in that regard. I should turn first to the problem which has been identified in the case law fully analysed in the judgment of MacMenamin J.

2. The Problem

It is important to start by recalling that the issue with which the Court is faced relates to the proper way in which a court should, in the context of accommodation needs, implement the undoubted principle that a plaintiff is entitled to full compensation for all losses suffered as a result of an established wrongdoing on the part of a defendant but is not entitled to be over-compensated. The fundamental principle of almost all damages claims is that a court should attempt to put the plaintiff back into the position, insofar as money can do it, in which the plaintiff concerned would have been had the relevant wrongdoing not occurred. In cases such as this, one of the heads of damage stems from the fact that a plaintiff may, as a result of serious or catastrophic injuries suffered, require adapted accommodation so as to enable them to live a reasonable lifestyle. Given that the problems which give rise to the need for such adapted accommodation stem from the established wrongdoing of the defendant then it is not disputed that the reasonable cost of providing suitably adapted accommodation forms a legitimate part of a relevant claim.


The problem is as to how it is appropriate at the level of principle to go about measuring that cost. In a very simple case a plaintiff might already own accommodation which can simply be adapted by the expenditure of money. In such a case the measure of damages will be the cost of the adaptation together with any continuing costs associated with maintaining the property in a suitably adapted form. While there may always be a debate about the details of the calculation in such a case that assessment is unlikely to throw up any significant issues of principle.


A more difficult question emerges in cases where it is necessary to provide new accommodation because the existing accommodation available to the plaintiff (either the plaintiff's own property, whether owned or rented, or the property of parents or other relatives, again whether owned or rented) may not be capable of suitable adaption. The issue which emerges in such cases has been fully analysed in the case law which has been dealt with by MacMenamin J. in his judgment.


On the one hand the cost of buying and adapting suitable premises might be seen as an appropriate starting point for a consideration of the correct amount of compensation. Of course, the fact that a cost would have to have been incurred in providing ordinary accommodation in any event would need to be taken into account as a deduction. But it is likely, at least in many cases, that providing compensation on the basis of purchase (even with such a deduction) may give rise to the possibility of a windfall gain for the estate of the relevant plaintiff. This is so because the property concerned will still be owned after it is no longer required as accommodation for the plaintiff in question and its value will, therefore, be available to increase the size of the plaintiff's estate beyond that which it might have been had the plaintiff not been injured. On that basis it is argued by defendants that the straightforward solution of assessing compensation by reference to the additional costs (above that which would have existed anyway if there had been no injury) of providing accommodation by buying and adapting a suitable premises amounts to over-compensation.


On the other hand it is said that to require an injured plaintiff to expend some of their own money (whether obtained from their own pre-accident resources, in the case of a plaintiff who happens to have such resources, or by allocating damages awarded under another heading, in other cases), in order to meet some of the additional costs of a purchase of a property suitable for adaptation, might be said to under-compensate the plaintiff concerned. The logic behind that argument is that a plaintiff who has their own resources should not be required to put those resources into the purchase of a property which they would not otherwise have had to have purchased. This is said to be so because so doing would be to place the plaintiff concerned in a less advantageous position than they would have been had they not been injured. Such a course of action can easily be seen to potentially infringe the principle that the plaintiff should be put back, insofar as it may be possible, into the position in which they were prior to being injured.


Likewise, if the additional resources required to purchase a suitable property come, not from the plaintiff's own resources, but from other damages awarded in the case in question, then it is equally said that this amounts to an under-compensation of the plaintiff. This is so, it is said, for those other damages, it must be assumed, will be properly calculated to compensate the plaintiff concerned under each other legitimate head of damages. If, for example, damages are awarded for future loss of earnings then those damages are designed to provide an income for the plaintiff broadly commensurate with the income which the plaintiff might have had if they had not suffered catastrophic injuries. Some of that income might, of course, have been used to provide for accommodation in any event. There could be no problem with making an appropriate deduction to reflect that fact. But to require such a plaintiff to divert an additional part of such damages into the purchase of suitable property, required so that they may enjoy appropriately adapted accommodation, can be argued to reduce the damages in question below that which places a plaintiff in the position in which such a plaintiff could be said to be fully compensated for their injuries.


From the perspective of a defendant the problem can, therefore, be seen as an over-compensation of the plaintiff but likewise, from the perspective of a plaintiff, the same problem can be seen as an under-compensation. It seems to me that there is a strong argument to suggest that the reason for that problem, and thus the reason for the difficulty encountered in much of the case law, is a failure to properly recognise the distinction between the current (in the accountancy sense of that term) cost of accommodation, on the one hand, and the element of the cost of the provision of purchased...

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