Charlotte Barry (A Minor) suing by her Mother and Next Friend Aisling Campbell -v- The National Maternity Hospital
Augustus Cullen Law recently won damages of over €735,000 for a child with cerebral palsy to cover the costs of special accommodation. The defendant admitted liability in negligence for the circumstances surrounding the birth of Charlotte Barry (aged 5) which resulted in her developing acute hypoxic-ischemic encephalopathy and suffering from a severe syndrome of Cerebral Palsy with neurodevelopmental difficulties. Pending enactment of legislation to provide for the payment of damages by periodic payment, an interim award of damages to be paid by the defendant were agreed, with exception of the compensation for the plaintiff’s future accommodation needs. Mr Justice O'Neill delivered judgment on 27th May 2011 on the contested head of damages.
It was agreed between the parties that a suitable property would have to be acquired and adapted to meet the plaintiff’s future accommodation needs. The amounts of €875,000 and €283,000 were agreed between the parties for the acquisition and adaptation costs respectively. It was further agreed that the expenditure to adapt the acquired property would enhance its value by €135,000. Augustus Cullen Law claimed the entire sum of €1.158,000 (ie €875,000 plus €283,000) on behalf of the plaintiff as compensation and submitted that this was necessary to satisfy the principle of restitution in integrum and to prevent the plaintiff from resorting to compensation awarded under other heads of damage in order to purchase the necessary accommodation.
Relying on the UK authority of Roberts v Johnson however, the defendants were only agreeable to offer the amount of €350,000 in respect of the cost of future accommodation for the plaintiff. The defendants contended that the plaintiff could only recover for the expenses of accommodation in excess of the expenses she would have incurred, had she not been injured and furthermore the value of the plaintiff’s parents’ property and the enhanced post-adaption value of the property must be deducted from the defendant’s sum in liability. It was argued by the defendants that this was necessary in order to prevent the plaintiff’s parents from gaining a “windfall”, as the property would ultimately pass to them on the death of the plaintiff considering the 35-year life expectancy of the plaintiff child. ACL rejected this argument on behalf of the plaintiff on the grounds that it not only deprives the plaintiff’s parents and siblings of their only asset but that it relieves the defendants from part of their liability and is thus a wholly inappropriate means of achieving a correct balance of justice considering the catastrophic consequences of the defendant’s wrongdoing.
In assessing the compensation to be awarded, Mr Justice O’Neill felt that it was necessary to compensate the plaintiff in respect of accommodation, for the entirety of her lifespan on the basis that as a result of the catastrophic injuries inflicted on her, her capacity to provide accommodation for herself during her adulthood has not only been destroyed, but also rendered unusually expensive and that she has a right during the adult portion of her expected lifespan to avail of appropriate accommodation independent of her parents. In this respect Mr Justice O’Neill determined that the plaintiff was entitled to the entirety of the additional cost of accommodation for the adult portion of her lifespan. In respect of the minority part of her life however, Mr Justice Ryan held that it would be wholly unjust to ascribe to the plaintiff the entire value of her parents’ property as if this was her exclusive benefit, considering the nature of the family home and that in this case it exists also for the benefit of the plaintiff’s siblings. In this regard, the plaintiff’s benefit in the family home was considered not to exceed one-sixth of its value. It was further determined that as the plaintiff’s benefit in the family home corresponds to approximately one-half of the plaintiff’s life expectancy, the benefit to the plaintiff of her share in such accommodation should be reduced by half to reflect this. Accordingly any compensation payable by the defendants for future accommodation needs was reduced by one-twelfth the value of the family home. In respect of the defendant’s contention that the enhanced value resulting from the adaptions to be carried out on the acquired property should also be deducted from their sum in liability, Mr Justice O’Neill rejected the approach taken by the UK authority of Roberts v Johnson and favoured the dicta of Mr Justice Walsh in the Supreme Court decision of Doherty v Bowaters Irish Wall Board Mills Limited. Accordingly where a property is acquired for the purposes of providing for the accommodation needs of a plaintiff, the value of the capital asset which will accrue to the plaintiff must be discounted and only the additional cost of providing the necessary accommodation, which does not result in an enduring or appreciation asset, should be payable by way of compensation by the defendant. The resulting calculation and total sum awarded to the plaintiff as compensation for her future accommodation needs amounted to €735,177.70.
In effect the approach and decision of Mr Justice O’Neill was a significant victory for the plaintiff bearing in mind that the defendants were only willing to accept liability to pay €350,000 towards the cost of the accommodation. In effect the judge has determined they must pay an additional sum of €385,000. This judgment is likely to be landmark judgment that will benefit other similar catastrophically injured plaintiffs.
16 June 2011