THE COURTS are “gambling” daily with the welfare and security of those who suffer catastrophic injuries because of the failure to legislate to ensure lifelong care needs will be met, a High Court judge has said when approving a record €11.5 million settlement for a young boy left quadriplegic after a road crash.
Ms Justice Mary Irvine, while stressing that the case before her involved an “excellent” settlement, called yesterday for “urgent and prompt” attention to the need for laws providing for periodic payments in catastrophic injury cases.
“The reality is the courts don’t know when people are going to die,” she said. “We are gambling every day.” It was an “absolute tragedy” and, in certain cases where lump sum payments had been made the money to meet care needs was running out.
She made the remarks addressing the general position in catastrophic injury cases when approving the €11.5 million lump sum settlement, the highest to date in a personal injuries action, in the case of Cullen Kennedy (10), Corheen, Loughrea, Co Galway.
Cullen suffered devastating injuries when, due to what the court heard was a “momentary lapse of concentration” by his mother, Margaret, when, distracted by him as she drove him to school in Co Clare in June 2008, her car veered on to the wrong side of the road and collided head on with another car. Ms Kennedy was uninsured at the time.
The other driver suffered minor injuries. Ms Kennedy suffered some injuries but Cullen, then aged six and restrained in a booster seat in the back of the car, suffered very severe injuries when his head hit the front windscreen. As a result he is quadriplegic and wheelchair-bound and will require 24-hour care for life.
Cullen’s mother and his grandmother Monica Kennedy play a large part in providing that care at his mother’s rented home and are supported on a 24-hour basis by nurses and special needs assistants, who assist Cullen in attending school. The child has no mental impairment and was described as “lively and vivacious”.
Cullen, suing through his grandmother, who gave up her job to help care for him, brought the proceedings against his mother and the Motor Insurance Bureau of Ireland. Under the settlement, the bureau will pay the €11.5 million judgment sum, plus costs.
While stressing the settlement in this case was “excellent” as it was expected to meet all Cullen’s lifelong care needs, Ms Justice Irvine said the continuing failure to enact laws providing for period payment orders involved injustice, as some catastrophically injured persons would run out of funds for their care. A second, lesser injustice due to the absence of legislation was that some such persons would die earlier than expected, resulting in a “windfall” for their next of kin.
Ms Justice Irvine noted that a working group on periodic payment orders (PPOs) was set up by the president of the High Court, Mr Justice Nicholas Kearns, 3½ years ago, chaired by Mr Justice John Quirke and including herself. It had reported unanimously in October 2010 that legislation was required to allow cases be settled on the basis of PPOs.
It was recommended that catastrophically injured persons would be paid a sum annually for the rest of their lives, a system that would guarantee their care, she said.
She said the report was delivered in October 2010 to the last government and had been with this Government since it came to power. While she had no doubt the Government had “very significant” issues to deal with, the absence of legislation had left the courts “gambling” with the futures of the most vulnerable litigants.
