The High Court has ruled that Ireland’s periodic payment order legislation does not remove the court’s existing power to make lump sum or interim awards in catastrophic injury cases. It also found that the legislation requires periodic payments to be adjusted by the Harmonised Index of Consumer Prices (HICP), unless another index is specified under the statutory process.
The judgment concerns a child who suffered catastrophic injuries shortly after birth. The Health Service Executive admitted liability in 2016. An earlier settlement provided €1.6 million, including €400,000 in general damages and a previous €100,000 interim payment, to cover claims up to October 2019. The remaining damages, including future care costs, were adjourned. The child was made a ward of court in December 2016.
Before the scheduled assessment of the remaining damages, the parties disagreed about whether to pursue another interim payment or a periodic payment order (PPO). The child’s side argued that experts could not reliably assess his long-term needs at his age and raised concerns that HICP indexation would not keep pace with care and medical costs. The HSE initially favoured PPOs, but later agreed to a further three-year payment. The parties continued to dispute whether four legal questions directed by the President of the High Court should still be decided.
In her November 2019 judgment, Ms Justice Murphy said the questions were not moot. The HSE had not asked the President, who had directed the issues to be heard, to set aside or vary that direction. The judge therefore proceeded to decide them.
On the first question, the court held that the 2017 Act supplements rather than replaces the High Court’s common law jurisdiction. On the second, the HSE’s agreement to a further three-year interim payment resolved what was in the child’s immediate best interests; medical experts on both sides considered it too early to assess his future care and treatment needs.
On indexation, the judge concluded that the uncontroverted evidence from five experts showed HICP-linked payments would probably undercompensate the child for future care and medical costs. The court held that it could not choose a different index when making a PPO: the Act requires HICP or an alternative specified through the statutory process. It also held that it had no inherent power to create a separate indexation method for PPOs.
The court did not make a final damages award or a PPO, and did not decide the child’s ultimate compensation. It said common law interim awards and payments on account remain available, and left to the President, as protector of the ward, the decision about how best to meet his needs while his long-term needs remain uncertain.