By Anna Scanlan, Litigation Department
The High Court recently approved a settlement of €11.5m to 10 year-old Cullen Kennedy who suffered catastrophic injuries as a result of a road traffic accident in 2008. He was a passenger in his mother’s car, which was uninsured, when it veered onto the incorrect side of the road, colliding head on with another vehicle. As a result of his injuries Cullen was left quadriplegic and will require 24 hour care for the rest of his life.
Proceedings had been brought against his mother and the Motor Insurers’ Bureau of Ireland. The settlement, which will be paid by the MIBI, was comprised of damages for pain and suffering to date and into the future, along with damages to cover the cost of his care for the rest of his life.
In approving the settlement, Ms. Justice Mary Irvine said that while the award was “excellent” the courts were gambling with the lives of those who suffer catastrophic injuries because of the failure to enact legislation to provide for periodic payment orders in cases such as this.
Under the current system there is only provision for a lump sum to be paid which is meant to provide for the injured party for life. There is scope for considerable injustice, as in some cases the injured party could live longer than expected and run out of funds. Alternatively, seriously injured plaintiffs could die unexpectedly early in life, leaving their next of kin with a large sum of money.
In 2010, the Working Group on Medical Negligence and Periodic Payments held that legislation should be enacted to empower the courts to make periodic payment orders to compensate injured persons with catastrophic injuries where long term permanent care will be required. The government has yet to enact such legislation and until it does the courts must try to calculate the appropriate sum based on medical and actuarial evidence.