Boy secures €5.5milion settlement

Full text available at : http://www.irishtimes.com/newspaper/breaking/2012/0703/breaking56.html

A young boy who is quadriplegic after being hit by a car near his home has secured €5.5million in settlement of his High Court action recently.

Ian was just five years old when the accident happened at Ballybrown, Clarina, Co Limerick, on September 25th 2008.

His mother Orla  told the court the settlement meant the family would not be “at the mercy of the HSE” in seeking basic equipment and facilities for Ian who requires continuous care.

Patrick Hanratty SC, for the child, said, on the day of the accident, Ian, then in senior infants, was leaving home with his mother to go to a dancing class at his school.

His mother returned briefly to the house to change something and Ian had uncharacteristically crossed the road by himself with the family dog, counsel said. He made it to the far pavement but then appeared to have bent down, possibly to pet the dog.

It was believed the boy’s head may have protruded slightly into the roadway as he bent down when the collision occurred, counsel said. Liability was an issue in the case, he added.

Through his mother, Ian had sued the driver of the car, Niamh Cusack, of Carraig, Clarina, Co Limerick, claiming, among other matters, she failed to pay attention to what she was doing. The claims were denied.

Ian suffered catastrophic injuries leaving him a spastic quadriplegic with cerebral palsy, it was claimed. He is completely dependent, cannot speak and is prone to spasms.

In July 2010, he was admitted to a respite facility, the St Joseph’s Foundation in Charleville, Cork, after his parents lobbied government representatives.

His counsel said it was intended that St Joseph’s, which is funded by the HSE and through charitable donations, should be a long term home for children but funding has been reduced, as have staff numbers, so he can only be cared for there during the week.

The family stated that they were happy with the settlement because it meant the family would not be at “the mercy of the HSE’’ any longer.

Approving the settlement for nine year old Ian Cusack today, Ms Justice Mary Irvine again urged the introduction of a statutory scheme for periodic payments for victims of catastrophic injuries aimed at ensuring all their future care needs will be met.

The current system of lump sum payments means “we are not protecting the welfare of the young and most vulnerable in society”, she said.

This was also highlighted recently in the case of a 10 year old boy Cullen Kennedy who was awarded €11.5 Million after a car crash which left him severely disabled. In this case, in her judgment, Judge Mary Irvine called for the "urgent and prompt" attention to the need for laws providing for periodic payments in such cases. This is under discussion at the moment where the President of the High Court Mr. Justice Nicholas Kearns wants to change these lump sum payments and replace them with periodic payments. This would involve the courts making periodic payments to compensate victims where long-term permanent care was required. It would mean that the court would not be put in a position where they have to put a figure on a victim’s injury.

In February 2010, a working group on Medical Negligence Litigation and Periodic Payments was established. It was chaired by Judge John Quirke who has recently retired but is also made up of Judge Mary Irvine, an adviser of the Justice Minister, solicitors, barristers, representatives from the MIBI, the State Claims Agency and the Irish Insurance Federation and Patient Focus.

The group have called for the state to introduce legislation to allow the court to make these periodic payments.

At Brophy Solicitors we have seen in many of our Personal Injuries cases, the difficulty in putting a figure on how much a victim should be entitled to as it is often difficult to estimate the impact of an accident on their future earnings or health care requirements. Legislation on periodic payments would ensure that all factors are taken into consideration and that the victim is compensated in a fair and just manner for the distress and upset which their accident has caused to their lives and that of their families.

Brophy Solicitors

09.07.12