The Supreme Court dismissed an appeal by the National Maternity Hospital and Peter Lenehan in a damages case brought by Charlotte Barry, a minor, through her mother and next friend, Aisling Campbell. Mr Justice Clarke said he agreed with Mr Justice MacMenamin’s judgment on both the result and the reasoning for dismissing the appeal.
Mr Justice Clarke’s judgment, delivered on 13 July 2016, addressed the assessment of damages for accommodation needed because of serious or catastrophic injuries. He said the established principle is to compensate a plaintiff for losses caused by wrongdoing without overcompensating them. The reasonable cost of suitably adapted accommodation can form part of that compensation.
The difficulty, he explained, arises where existing accommodation cannot be suitably adapted and new premises are needed. Buying and adapting a property may leave a capital asset in the plaintiff’s estate, potentially creating a windfall. But requiring the plaintiff to use personal resources or damages awarded for other losses to meet purchase costs could leave them undercompensated.
Mr Justice Clarke tentatively proposed that a future court should consider using the cost of renting suitable accommodation as the starting point. He reasoned that rent reflects the cost of having a home, while the extra cost of buying also acquires an asset. He stressed that the proposal was made in the abstract: the issue had not been fully argued or supported by evidence in this case, so it was not a definitive ruling.
He identified practical matters for a future case, including the lack of a market in specially adapted rentals, how landlords and tenants might arrange adaptations, and how rent-based calculations would account for life expectancy. He also said suitable accommodation may need to house family members who would reasonably be expected to live with the injured plaintiff.
The judgment did not require an injured plaintiff to rent. Mr Justice Clarke said a plaintiff, or someone making decisions on their behalf, could choose to use additional resources to buy, provided that choice was voluntary. Whether a rental-based assessment is preferable, generally or in a particular case, was left for future proceedings with appropriate evidence and argument.