Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

One of the most tragic events that can happen to a child is that it sustains catastrophic injuries at its birth that will dominate the rest of his or her life. Unfortunately, although these events are infrequent in Ireland, they do occur. The parents of that child are then also placed in a life altering position. They were expecting to take home a healthy child who would grow up to enjoy all the great pleasures and challenges of life but instead they take home a child who will no doubt provide them with joy but who will require enormous care throughout his or her life. Overnight, the parents of that child have their lives changed and, for their remaining days, their primary and never ending responsibility will be to ensure the care of the child. Many parents in Ireland today are in such a position in that they are the parents of children who sustained catastrophic injuries at birth. Those parents need to be commended and acknowledged. Being responsible for a child with catastrophic injuries is not only emotionally draining, it is also financially impossible for most ordinary people. When one thinks of the costs that need to be incurred to accommodate the care necessary for the child, one can recognise the enormous cost involved. Houses need to be restructured - on occasion, they need to be rebuilt - and facilities need to be provided while constant nursing and medical care are required.

In many instances, when parents ask what caused their child to sustain these injuries, the hospital is guarded in giving a response. Unquestionably, there is a fear on the part of the hospital that litigation may ensue but, notwithstanding that, parents are entitled to be told what happened to their child if he or she sustained catastrophic injuries during birth. If there is negligence on the part of the hospital, court action will follow. Professional negligence in all walks of life is an occupational hazard. It applies in every profession. If there is negligence, it would be preferable if parents of children who suffered catastrophic injuries at birth could be told that from an early stage and if hospitals and the HSE could own up at an early stage to the fact that there was negligence leading to catastrophic injuries rather than dragging parents through the arduous and emotionally draining process of going to court.

The cost of looking after a child with catastrophic injuries is enormous. All parents, however, who have such a child will do their best to ensure he or she is cared for throughout his or her life. The greatest fear that the parents of a child with significant disabilities have is that once they die, there will be no resources in place for the child to be cared for. That is why parents go through the process of trying to get compensation for their child if they believe there has been negligence during child birth. It is not just children at birth who can sustain catastrophic injuries. People can also sustain serious injuries during childhood and adulthood, which alter their lives permanently. The injuries mean that they need constant care throughout their lives. If that is the fault of others, individuals are entitled to seek to hold those responsible for the life changing injuries they have sustained to account.

The only method our legal system has to try to rectify damage done to individuals who have sustained such catastrophic personal injuries is that the courts will award them damages for the negligence of others. In our system, people can only get damages as a method of recompensing them for those injuries. They can seek general damages or special damages. General damages are intended to compensate the person for the pain, suffering, distress and loss of amenity of life. However, it is in the areas of special damages that matters become more complicated. Special damages include loss of earnings. That obviously does not apply in the case of a child who sustains catastrophic injuries at birth but it would apply to somebody in middle age who sustains a catastrophic injury. Special damages also include the cost of care, medication, treatment and medical aids required to carry somebody through his or her life. When it comes to the assessment of special damages, the courts make assumptions in respect of relevant factors and contingencies. They are based on factors such as the life expectancy of the person taking the case, the prospect of deterioration, the cost over time of medical care, inflation rates and the rate of return on the compensation for the category of loss concerned when invested. When this matter comes before a court, it can be complicated for the court to calculate the how much is required for an individual who sustains catastrophic injuries at birth, assuming that he or she will live to the age of 65 or 70. In many respects, the court is making a guess as to how much money is necessary. To do so, the court will calculate the capital value of future care by multiplying the annual net cost by a multiplier, which is actuarially calculated based on life expectancy. The resultant capital sum is awarded to the plaintiff as damages to enable him or her to pay for a lifetime of future care.

Many legitimate criticisms can be made of a process that requires a court when a child is aged ten to award him or her a lump sum to compensate him or her for life. The process can be seriously undermined by the assumptions that are taken into account by the court such as the life expectancy of the person taking the case. The child may live much longer, or not as long, as has been assumed by the court. The court also estimates future investment returns and inflation rates as best it can when awarding a lump sum. The court cases become lengthy hearings because of a conflict of evidence between the two sides as they both try to advance the best outcome from their point of view. They will have different actuarial reports and different assessments based on the child living to a particular age and the court will then have to determine which is correct and resolve the conflicting expert medical and other evidence. This is a difficult task for the court because it has to do what is fair and just in all circumstances. The reason it may be unfair is many catastrophically injured persons have spent their final years without the appropriate compensation. If a court could make periodic payments on an ongoing basis, it would not have to guess as to what is the appropriate amount. Currently, certain individuals who have sustained catastrophic injuries at birth can be left without sufficient compensation in the latter part of their lives to pay for the care required. That is an unfairness to them. A shortfall arises because the lump sum awarded many years previously has proved to be insufficient.

Similarly, there can be a situation where a defendant will have to pay a lump sum on the basis that the child will live to 65 years of age. It may be the case that the person concerned will die in his or her 20s or early 30s. In that instance, it is unfair on the defendant to have to pay the money; the defendant is paying a lump sum to compensate a person who was to live to the age of 65 years.

There are strong arguments in favour of what is contained within this legislation, which is why Fianna Fáil will be supporting it. The arguments in favour are that there will not be a situation where there will be an unfairness whereby somebody could be awarded too much or too little. By far the preferable position is for the court to be able to make periodic payments, to assess the needs of the child or the person at a particular stage and then to come back and assess it at a later stage to see whether a top-up is required and how much further compensation is necessary.

We are behind the curve compared to other countries on this issue. If one looks at other civil law or common law jurisdictions, one will see that many of them have periodic payment structures in place. Periodic payments were introduced in Germany in the late 19th century as the appropriate means of compensating for pecuniary loss. In Belgium damages for future loss may be awarded as a lump sum or by way of periodic payments. The court has discretion to decide the method of compensation to be employed. Initially, there is a mechanism whereby periodic payments are permitted. Periodic payments are still the norm in Sweden in cases involving serious loss of earnings.

When one looks at the common law world, one will see that periodic payments are also made. They were introduced in Australia in the 1960s. In the United States and Canada there has been a recognition from as far back as the 1980s that partial and periodic payments are the most appropriate mechanism. Legislation was introduced in the United Kingdom in 2003 to enable a court awarding damages for future pecuniary loss to order that damages take the form of periodic payments. It required the court to consider whether it should make such an order.

This matter was also considered by an expert group in Ireland in 2010. It was chaired by the High Court judge Mr. Justice John Quirke. It produced a report in October 2010 which concluded that the existing method of awarding damages for future pecuniary loss in Ireland, namely, the single lump sum award, was inadequate and inappropriate in cases where a plaintiff had been catastrophically incapacitated in the long term or permanently. The group noted that these views had been expressed in this jurisdiction previously and that they had also operated in other jurisdictions at the time. It recommended that the court be empowered by legislation to make periodic payment orders in catastrophic cases where long-term or permanent care would be required, subject to its satisfaction that the continuity of the periodic payments would be secured.

The report and its recommendations were produced in late 2010. It is unsatisfactory that the legislation is only now going through the Oireachtas in 2017. It is not just me who is saying it is unsatisfactory; it is apparent to anyone who has knowledge of the courts that it is unsatisfactory for parents to be put in a very difficult position when they have a child with catastrophic injuries and to have to go through this process involving a lump sum payment rather than have the option available under the legislation going through the House. It is instructive to note that the President of the High Court, on 22 March this year, referred to the fact that it was shameful that legislation to allow periodic payments in such cases had still not been enacted. He was saying it was shameful not as a judicial criticism of the Oireachtas because the judges wanted the option but because in the case of a young boy from Killorglin a settlement of €15 million had been approved because of brain injuries he had sustained at birth. The court, when making the comments, stated it had seen many families worn down by the legal process who were opting for lump sum payments instead of coming back to the court for interim payments.

It is important to note that there is urgency attached to this legislation. It is not to facilitate judges or lawyers but families, in particular parents who find themselves in the most appalling position of having to go to court to gain compensation for a child who sustained catastrophic injuries at birth. It is important to note that sometimes when people hear that families have been awarded millions of euro as a result of their children sustaining injuries at birth, they think that in some respects it is a windfall for the family, but it is nothing of the sort. The money is kept under the control of the wards of court system. The parents do not receive the money. It is to be used for the child and his or her essential care throughout his or her life for as long as he or she is a ward of court. That is why we welcome the legislation.

There is another part to the legislation which was introduced when it was brought to the Dáil. It is contained in Part 4 which deals with open disclosures of patient safety incidents. It is a proposal within the legislation which we also support. It seeks to cut down the barriers that prevent medical practitioners or hospitals or other individuals from apprising a patient of the fact that he or she sustained an injury of which he or she should be informed. The hospital may or may not have liability, but that is not the issue. In section 9 of the Bill there is a reference to the open disclosure of patient safety incidents. I believe this will have a positive effect on the way medicine is practised in Ireland. I also believe it will have a positive effect on the rights of individuals who are in hospital and receiving treatment.

As I said, professional negligence is an occupational hazard. There is no professional in this country who has never made a mistake. Unfortunately, if one is a doctor and makes a mistake, it can lead to catastrophic injuries. In general, however, when doctors or medics make mistakes, it does not lead to catastrophic injuries, but it can lead to injuries to a patient in a hospital. The benefit of this legislation is that it will enable the hospital to make an open disclosure. There may be concerns on the part of insurance companies or the hospital about whether this will lead to liability being imposed on the hospital or the doctor concerned. I am pleased to say section 10 of the Bill recognises that any such disclosure will not constitute an admission of liability or fault on the part of the person or hospital making the disclosure.

A novel proposal is contained within the legislation which we welcome and can consider further on Committee Stage, but the legislation should be expedited as much as possible through the House in order that the parents of children with catastrophic injuries will not be forced to go through the very difficult process outlined by the President of the High Court two months ago.

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