The High Court has adjourned its assessment of a child’s future care costs in a medical negligence action, so that recommended behaviour management therapy can take place before those long-term needs are decided.
In a ruling delivered on 19 April 2016, Mr Justice Barr found that the court had jurisdiction to adjourn part of the hearing under Order 36, rule 34 of the Rules of the Superior Courts or, alternatively, under its inherent jurisdiction. He said exceptional circumstances justified doing so in this case.
The plaintiff, Jude Miley, is suing as a minor through his father and next friend, Greville Miley. The defendant, Lorcan Birthistle, is the agreed nominated representative for the hospital and its medical and nursing staff. Liability for the injuries was admitted. The court said the child suffered a prolonged hypoxic ischaemic brain injury during an operation in January 2012, leaving significant visual, cognitive, functional and behavioural difficulties.
The defendant asked the court to defer deciding the plaintiff’s future care needs until he had received behaviour management therapy. The application followed the opening of the case and evidence from one witness. The defendant argued that the need for two carers in adulthood, which the plaintiff’s care claim anticipated, could depend on behavioural difficulties that might improve with treatment. The defendant’s proposed adjournment period was ten years or a shorter period set by the court.
The plaintiff opposed the application, arguing that the court lacked jurisdiction to impose a provisional award or periodic payment arrangement against his wishes. The plaintiff’s position was that future care needs could be assessed in the usual way at trial. The parties had agreed damages of €1.8 million for future loss of earnings and accommodation requirements, and agreed to use a life expectancy of 70 years for the action. The defendant had also made an interim payment of €250,000 before trial.
Mr Justice Barr said reports from both sides showed improvement in the plaintiff’s behaviour during periods of consistent therapy and that experts accepted his progress and resulting care needs would need further review. He considered that treatment could substantially affect whether one or two carers would be needed. The judgment cited a difference of about €9 million in projected future care costs between those scenarios and said deciding that claim before the advised treatment had a chance to work risked grave injustice to the defendant.
The court did not set the length of the adjournment in the ruling. It directed that the parties be heard on its appropriate duration. It will assess therapy and care costs for the adjournment period and proceed with other heads of claim that can be dealt with at this stage. The ruling did not determine the plaintiff’s final future care costs or whether he would need one or two carers.