The High Court has refused a hospital’s request to assess a child’s damages over two stages, finding no agreement between the parties or exceptional circumstances that would justify overriding her mother’s decision to seek a final lump-sum assessment.
The ruling, delivered by Mr Justice Bernard J. Barton on 10 March 2015, concerned the procedure for assessing damages. It did not decide the amounts due for the future care, accommodation, aids and appliances, loss of earnings or other heads that remained disputed.
The child, Grace O’Neill, was born at the National Maternity Hospital on 8 July 2007. The hospital admitted liability in its defence, while requiring the plaintiff to prove the rest of her claim. The parties had agreed, subject to court approval, several amounts including €450,000 in general damages, €100,000 for care to date, and awards for assistive technology, therapies and special-needs assistance. They had not agreed the future claims.
The hospital proposed an interim assessment covering the next ten years, or a shorter period, with the remaining damages assessed later. Its counsel argued that future care and loss of earnings were uncertain and could be assessed more accurately when the child reached adulthood. The mother and next friend opposed that proposal, saying the family wanted the claim determined once and for all under the law then in force and wished to avoid repeated assessments for the child.
The judge found that the hospital’s proposal was not an offer to settle or compromise the claim within the meaning of Order 22, Rule 10 of the Rules of the Superior Courts. He also rejected the argument that the court could use its wardship jurisdiction: the plaintiff was a minor, not a ward of court or a person of unsound mind not so found. The court considered its inherent jurisdiction and the power under Order 36, Rule 34 to adjourn a trial.
The judge acknowledged that waiting could make aspects of the child’s future needs easier to assess. But he found that her mother had considered the risks, including possible under-compensation, and had made a rational decision based on considered advice and what she believed was in her daughter’s best interests. The circumstances did not meet the exceptional threshold for the court to intervene against her expressed wishes.
The application was refused. The judgment said the court could not use the adjournment rule to create a periodic-payment system without legislation, absent party agreement or exceptional circumstances. The judge said he would discuss the final form of the orders with counsel; the judgment does not set out those final orders.