The HSE has indicated that it will take a High Court cerebral palsy award to the Supreme Court after losing an appeal against the original settlement.
On 12th July 2006, Gill Russell was born at the Erinville Hospital in Cork suffering from dyskinetic cerebral palsy. The cause of his injury was described as a “prolonged and totally chaotic” delivery by his legal representatives after his mother – Karen Russell from Aghada in County Cork – had undergone a symphysiotomy to assist with the birth.
On her son´s behalf, Karen Russell made a claim for compensation against the Health Service Executive (HSE). Liability was admitted and, in 2012, Gill received an interim High Court cerebral palsy award of €1.4 million. This was followed two years later with a further High Court cerebral palsy award of €13.5 million – the highest settlement ever awarded by the High Court for cerebral palsy.
The HSE and State Claims Agency appealed the level of the High Court cerebral palsy award – arguing that Mr Justice Kevin Cross had based the award on a much lower rate of interest than was traditionally used in Irish courts to calculate the future value of the settlement. The two agencies warned that it was a dangerous precedent that could cost the state and the insurance industry up to €100 million per year.
However, earlier this week, a three-judge panel at the Appeals Court upheld the original settlement – stating that, using the previous formula, a catastrophically injured person would have to take “unjust and unacceptable” investment risks to ensure their financial security. The judges ruled that it was not the courts´ function to inquire what a claimant was likely to do with their award for the purposes of determining its value.
Handing down the verdict of the Appeals Court, Ms Justice Mary Irvine said that a seriously injured child should not be compared with an investor for the purposes of deciding what should be a prudent investment. Furthermore, she added, the HSE and State Claims Agency would not be in this predicament had the government not failed over decades to enact laws that would allow a structured compensation payment system.
Unfortunately for Gill and Karen Russell, the battle to settle the claim for compensation is not yet finished. The HSE has indicated that it will take the High Court cerebral palsy award to the Supreme Court, where its case will be heard by a seven-judge panel. The date of the hearing is not yet known.