Elaine Lennon v Health Service Executive - North Eastern Area and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 18 June 2014
• Neutral Citation: [2014] IEHC 336
• Docket Number: [123 P./2009]
• Court: High Court
• Date: 18 June 2014

[2014] IEHC 336

THE HIGH COURT

[123 P./2009]

Lennon v Health Service Executive - North Eastern Area & O'Mathuna

BETWEEN

ELAINE LENNON (A PERSON OF UNSOUND MIND NOT SO FOUND SUING BY HER FATHER AND NEXT FRIEND JOHN LENNON)

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE - NORTH EASTERN AREA AND PATRICK O'MATHUNA

DEFENDANTS

Tort Law – Liability Admitted – Periodic Payment Order – Interim Settlement – Assessment – Care Package.

Facts: Liability had been admitted by the defendants and it had been agreed that a periodic payment order should be made. However, the necessary legislation allowing for this to happen had not yet been implemented and so the hearing was adjourned three times in order to await the introduction of this legislation which would enable the making of the periodic payment order. In the interim period the parties agreed to various settlements The third occasion on which the parties agreed to an adjournment was April 2014. The hearing was to be adjourned for a further three years so Irvine J. had to assess the amount to be paid by the defendants to the plaintiff in order to provide for her care requirements during this period.

In addition, given that the plaintiff until moving into her new home had not been in a position to have a normal relationship with her daughter who had not lived with her before, Irvine J. stressed that sufficient funds should be given to ensure that the mother, father and daughter could work on developing their relationship as a family.

Taking the above factors into account and weighing up the plaintiff”s care needs, routines and the evidence given on behalf of both parties against what would be fair in the circumstances to the defendants, Justice Irvine arrived at a sum that would provide for the appropriate care package for the plaintiff over the next three years.

Ms. Justice Irvine

1 The plaintiff in these proceedings was born on 7^th December, 1974, and is now 38 years of age. At the time of the events the subject matter of these proceedings, the plaintiff was working as a carer with the HSE and had just attained her Masters Degree in Psychology in Dublin City University.

2 Regrettably, in February 2007, the plaintiff developed an intracranial abscess which ruptured into her ventricular system and as a result sustained devastating injuries which will afflict her for the rest of her life. It is particularly tragic that these injuries were sustained at a time when herself and her partner, Mr. Marcus Connolly, were about to embark upon life as parents of their daughter Claudia who was born on 4^th February, 2007.

3 Liability in respect of the plaintiff's claim has been admitted and when the case was first listed for hearing in February 2011, the parties were agreed that this would be an appropriate case for the making of a periodic payment order in respect of particular heads of claim if the court was permitted to award damages on this basis.

4 In anticipation of a change in legislation that would allow for the making of periodic payment orders an interim settlement was agreed between the parties on 23^rd February, 2011. This provided that the defendants would pay a sum of €2,395,080 by way of damages in respect of the following heads of claim, namely:-

(i)	General damages	€450,000
(ii)	Plaintiff's Housing Requirements	€500,000
(iii)	Future loss of earnings	€650,000
(iv)	Loss of earnings to date	€90,000
(v)	Retrospective care	€225,000
(vi)	Assistive technology	€290,000
(vii)	Orthotics	€60,000
(viii)	Psychologist fees	€10,000
(ix)	Special damages including travel	€15,500
(x)	Physiotherapy costs limited for the two year period of agreement adjournment	€4,580
(xi)	Costs of aids and appliances for the two year period of agreement adjournment	€100,000
Total		€2,395,080

5 The settlement, which included other terms it is not necessary to mention, provided that the proceedings would then be adjourned for a period of two years at which stage the remaining claims would be dealt with, namely the cost of future physiotherapy, aids and appliances and care.

6 The proceedings came back before the court for hearing on 16^th April, 2013, at which stage it was agreed that the claim should be further adjourned for a period of one year to allow for the implementation of the long promised legislation in respect of periodic payments and to allow the plaintiff move into a new home which had been purchased on her behalf and which was then in the course of being fitted out to meet her needs.

7 The terms of that interim settlement provided,inter alia, that the defendants would pay to the plaintiff a further sum of €310,000 to cover the categories of claim set out at paragraph 2 of a written agreement signed by the parties.

8 The proceedings were again listed for hearing on the 30^th April, 2014 when the parties once more agreed, because of the very uncertain evidence regarding the plaintiff's life expectancy, to postpone seeking a final award for a further period of three years in the hope that by then legislation will be in place that will allow the court finalise this claim by way of a periodic payment order.

9 The parties reached an accommodation in relation to a number of heads of claim which needed to be dealt with and as a result this decision is one which relates solely to the sum to be provided by the defendant in respect of the plaintiff's care requirements for the next three years.

10 In the years immediately following her injury, the plaintiff spent a significant number of months in Beaumont Hospital after which she was transferred for further rehabilitation to the National Rehabilitation Hospital in Dun Laoghaire. Following her first period of rehabilitation there the plaintiff moved for several years to Hamilton Park Nursing Home, where it is agreed she received excellent care. Her partner Marcus Connolly, who is an electrician at Dublin Airport, visited her on an almost daily basis and their daughter Claudia was brought to visit her twice a week. The plaintiff was very upset when residing in the nursing home and the clinicians in charge of her care were agreed that living in such an environment compromised her ability to engage appropriately with her partner and daughter and that every effort needed to be made to make her part of a normal family unit as soon as possible.

11 Early in 2013, the plaintiff and her partner purchased a three bedroom bungalow in Kilbarrack. Planning permission was obtained to adapt it so as to make it an appropriate family home for the plaintiff, her partner and daughter and such additional carers as might be required to assist her in her daily activities. It was hoped that the property would be ready for occupation by the end of 2013, but that aspiration proved optimistic. However, it is pretty certain that the family will move into this house in June of this year as it is almost completed.

12 At present the plaintiff is living in a rented apartment in Sutton, Co. Dublin. Her daughter stays over with her every Saturday night and on one other day during the week comes to visit her after school. The plaintiff loves her apartment, which overlooks the sea, and residing there has vastly improvement the quality of her day to day life. She is nonetheless eagerly awaiting the time when she will be in a position to live with her partner and daughter in a family environment.

13 There is little dispute between the parties as to the extent of the plaintiff's injuries. In this regard, I heard evidence from her partner Mr. Connolly; Dr. Niall Pender, Consultant Neuropsychologist; Ms. Maggie Sargent, a Nursing and Care Consultant; Ms. Gráinne McKeown, a physiotherapist who specialises in the rehabilitation of patients with chronic neurological conditions stemming from brain damage; Dr. Kristina Williams, Consultant Physician in Adult Neurological Disability Medicine; Mr. Will Winterbotham, Neuro-physiotherapist, and Ms. Mary Maguire, the plaintiff's case manager. On the defendant's behalf, the court heard evidence from Dr. Nicola Rhyl, Consultant in Rehabilitation Medicine; Ms. Christine Kydd, Nursing Care Consultant; Ms. Siobhan Doyle, Physiotherapist and Ms. Lockhead, Occupational Therapist. Other witnesses from the Irish Wheelchair Association ("IWA") were heard in respect of the nature and the costs of care provided to date and as to the nature and the cost of care which the plaintiff maintains she requires over the next three years.

14 The plaintiff suffers from spastic quadraparesis and is wheelchair bound most of the time. She also suffers from epilepsy which is well controlled with medication. She can bear weight on her legs and walk, albeit in an unsteady fashion, if supported by two carers and can do so for a distance of approximately 100 yards. In addition, with supervision, the plaintiff can stand for as long as one or two minutes unsupported. However, while in that position any movement of her head or upper body is likely to destabilise her. Both of her arms are uncoordinated and she has very little power in the left arm.

15 The plaintiff is able to walk a little using what is described as a gutter rollator, a walking device that can be used on smooth surfaces. She can manage five to ten laps of the interior of her apartment once she has assistance to help her steer and give her support. The plaintiff is particularly at risk of falling because of her ataxic gait, poor balance, lack of trunk control and left leg scissors action. If she were to become unbalanced when using the rollator, she would not be able to correct her balance. The plaintiff's experts maintain that if this were to happen when she was only supported by one carer there would be a real risk that they would both fall. The defendant accepts that the...