Gill Russell (minor suing by his mother and next friend, Karen Russell) v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 18 December 2014
• Neutral Citation: [2014] IEHC 590
• Court: High Court
• Date: 18 December 2014

[2014] IEHC 590

THE HIGH COURT

[No. 1918 P/2009]

Russell (A Minor) v Health Service Executive

BETWEEN

GILL RUSSELL (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, KAREN RUSSELL)

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

CIVIL LIABILITY ACT 1961

RSC O.36 r34

WELLS v WELLS 1999 1 AC 345 1998 3 WLR 329 1998 3 AER 481

CIVIL LIABILITY ACT 1961 S24

CIVIL LIABILITY ACT 1961 S24(3)

SIMON v HELMOT 2012 UKPC 5 2012 MED LR 394 2012 126 BMLR 73

BOYNE v BUS ATHA CLIATH (DUBLIN BUS) & MCGRATH 2003 4 IR 47 2002/4/749 2002 IEHC 135

MCENEANEY v MONAGHAN CO COUNCIL & COILLTE TEORANTA UNREP O'SULLIVAN 26.7.2001 2003/40/9627

LENNON v HEALTH SERVICE EXECUTIVE - NORTH EASTERN AREA & O'MATHUNA UNREP IRVINE 18.6.2014 2014 IEHC 336

LIVINGSTONE v RAWYARDS COAL CO 1880 5 AC 25 1880 7 R (HL) 1 1879-1880 28 WR 357

KD (A CHILD) v BELFAST SOCIAL HEALTH & CARE TRUST 2013 NIQB 78

RIALAS v MITCHELL 1984 128 SJ 704

SOWDEN v LODGE 2005 1 WLR 2129 2005 1 AER 581 2004 148 SJLB 1282 2004 EWCA CIV 1370

WAKELING v MCDONAGH 2007 EWHC 1201 (QB) 2007 AER (D) 455 (MAY)

Tort – Negligence – Personal injuries – Injuries suffering during birth – Admission of liability – Assessment of damages for future expenses

Facts: The plaintiff suffered catastrophic injury at birth resulting in dyskinetic four-limbed cerebral palsy. The defendant admitted negligence. A settlement was approved by the High Court and a sum was awarded by way of periodic payment over two years. It was agreed that if legislation establishing Periodic Payment Orders were enacted before the matter returned to court, the plaintiff”s future needs would be dealt with by way of periodic payments. If not, the plaintiff was entitled to the balance not already provided for by way of lump sum. The defendant wanted the matter to proceed on the basis of a Periodic Payment Order rather than an assessment of liability in accordance with the provisions of the Civil Liability Act 1961. The court said the plaintiff was entitled to have his case assessed in its finality in accordance with the law at that time. The parties agreed on general damages pertaining to the costs of the plaintiff”s care to date. They also agreed as part of the settlement that the plaintiff”s life expectancy was 45 years. This case was concerned with the quantum of damages for future expenses. The court considered the multiplicand i.e. the costs of future care, aids and appliances and the rate of the multiplier to be used in making its decision on the rate of return on the lump sum to be paid.

Held by Cross J: It was not the courts function to consider the nature of the investment to be made on the plaintiff”s behalf. It was for the court to determine a risk adverse multiplier that would result in a prudent investment for the plaintiff”s needs. In makings its decision on the appropriate rate of return the court considered the issue of differential wage inflation and extra medical inflation. The court concluded that (a) the plaintiff was entitled to full compensation; (b) the multiplier, once assessed, was not subject to any further reduction; (c) there was no such thing as a ‘risk free’ investment; (d) while not totally risk adverse, ILGS provided the safest method of investment though there were some practical difficulties; (e) from whatever sum is fixed, a sum of 0.5% was to be deducted to allow for the extra wage inflation element. There should be no extra allowance in the case for any extra medical inflation; (f) the appropriate rate whether assessing it on the basis of ILGS or a suitably ‘risk averse mixed fund’ was 1%.

In relation to the multiplicand the court determined if the plaintiff”s model of care was reasonable in meeting the plaintiff”s needs. Cross J watched a video demonstrating the level of care the plaintiff required in a day. The parties eventually agreed that the plaintiff needed two carers to assist with all of the plaintiff”s care needs. The court determined that a “live in” carer was required and that it was not unreasonable for the plaintiff”s family to employ their own carers as opposed to availing of carers from an agency. The model of care suggested by the defendant did not encompass what Cross J had in mind although he did accept that the actuarial figures were a guide and thus reduced the plaintiff”s figures accordingly. The parties managed to agree on the initial capital sums and the annual replacement sums. The court made a determination on each of the remaining disputed items at the 1% rate i.e. the cost of sterile water, cost of two wheelchairs, cost of Scotston therapy, cost of holidays, cost of vehicle, occupational therapy, additional assisted technology, digital camera, text capture system, second gaze tracking AT system, additional IT items, IT training, door openers, electrically operated curtains, legal costs, travel, GP charges, medication and hospital charges. The non- agreed items amounted to €1,242,217 on a 1% basis. This was added to the sum of €2,042,802 for the agreed items totaling €3,285,019. This was rounded down to €3,275,000 to which €10,000,000 was added for care. The final additional item added by the court was the cost of financial advice. The court awarded the plaintiff €13,522,000 in total and said it was a reasonable sum, fair to both the plaintiff and defendants.

1. Introduction

2 2 1.1 The plaintiff was born on 12 ^th July, 2006. Due to the now admitted negligence of the defendant, the plaintiff suffered catastrophic injuries at the time of his birth and has dyskinetic four limbed cerebral palsy. Gill is totally dependent for every need on a 24 hour basis, requiring full time care and assistance for his lifetime as well as the assistance of a number of aids and appliances to make his life as reasonably normal as possible.

3 3 1.2 The case initially came on for hearing in 2012 and a settlement was approved by order of the President of the High Court on 2 ^nd October, 2012, whereby the plaintiff was awarded a sum of €1.4m by way of a periodic payment for two years. This sum was expressed to be a discount of 25% of the full value. It was a term of the settlement that the matter would be listed in October 2014 and if legislation establishing Periodic Payments Orders had been enacted in the meantime, the plaintiff's future needs would be dealt with by way of periodic payments but if legislation had not come into effect it was agreed that in the default of agreement between the parties as to the terms of any settlement that the plaintiff would be entitled to proceed with the balance of his claim not already provided for by the payment of the initial lump sum on an agreed basis of 100% of the claim notwithstanding the previous deduction of 25%.

4 4 1.3 The matter first came for hearing before this Court on 21 ^st October, 2014, and counsel for the defendant submitted, inter alia, that notwithstanding the aforementioned agreement that the matter should proceed on the basis of a Periodic Payment Order rather than the assessment of liability in accordance with the provisions of the Civil Liability Act 1961.

5 5 1.4 I was invited by counsel for the defendant to find that the matter should proceed on the basis of Periodic Payment Orders on the basis that this was in the best interest of both the plaintiff and of justice and the defendant invoked the provisions of O. 36, r. 34:-

"The Judge may, if he thinks it expedient for the interests of justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he shall think fit."

6 6 1.5 I reject that submission. The plaintiff through his next friend is entitled to proceed to have his case assessed in its finality in accordance with the law as it stands. Even in the absence of an express agreement and settlement that the plaintiff is so entitled to proceed, I believe that exceptional and almost unimaginable factors would have to ensue to prevent a plaintiff, who is well advised by solicitor and counsel, to have his case determined in accordance with law.

7 7 1.6 There are many good reasons for Periodic Payment Orders but the matter is by no means one sided. As counsel on behalf of the plaintiff stated, the plaintiff's family and the plaintiff himself, are significantly opposed to any obligation on the plaintiff to have to return to court in two or five or even ten years time to have his needs further assessed by several experts from both sides. In addition to the understandable reluctance on behalf of the plaintiff's family, the parties in this case have expressly agreed in settlement approved in October 2012, to have the entire balance of the claim dealt with in 2014, in the absence of any change of the law.

8 8 1.7 It was a further term of the settlement agreement between the parties in 2012 and approved by the High Court that the plaintiff's future life expectancy is to the age of 45 years. Life expectancy is always a difficult matter in such cases as this and the fact that the parties have reached agreement is, of course, to ease a significant burden on the court. Ultimately, however, if the parties had not agreed a life expectancy the court would have had to determine one on the basis of the evidence.

9 9 1.8 I note also that through the sensible offices of the parties and the representatives in the 20 days of this trial that a significant agreement has been reached in relation to a number of the items of the claim. There are, however, a number of significantly important issues that fall to be decided.

2 Calculating the Rate of the Multiplier

2 2 2.1 With apologies to the late Prof. John M. Kelly and the "Hidden Nature of the Tort Action", it is trite law that the purpose in awarding damages, subject to qualifications that they should not be too remote is to place the plaintiff in the same position as he or she had been before the...