A nine-year-old boy left brain damaged and permanently disabled after a failure to diagnose an infection when he was a baby has settled his High Court action against Temple Street Children's Hospital, Dublin, with a final record damages payout of €25 million.
This brings to a record €32.4 million the total paid out to Benjamin Gillick, originally from Dublin but now living with his family in London. It is the highest ever settlement in the history of the State for a personal injuries claim.
The €25 million settlement was approved by the High Court on Wednesday afternoon and follows an interim payment of €6.7 million three years ago and a further “uplift” payment to the boy who has cerebral palsy, is tetraplegic and cannot talk.
Mr Justice Kevin Cross approved the final €25 million despite hearing from the boy's parents Andrew and Miriam Gillick they believed the final offer should have been €27.5 million.
His father Andrew said: “Ben will never know what he has missed, he is entitled to proper care and financial independence.”
Earlier this week, the couple told the judge they were “vehemently against” a €22 million final payment offer and asked for that offer to be rejected.
Mr Justice Cross did so and sent the case for hearing before another judge but, following further talks between the sides, the Gillicks’ lawyers returned to Mr Justice Cross seeking approval of an increased offer of €25 million.
Denis McCullough SC, instructed by solicitor Michael Boylan, said the latest offer would bring total damages to €32.4 million and included the full cost of care and the cost of the child attending a specialist school 80km from his London home with transport there and back.
Andrew Gillick said he would prefer the case to be heard and a judge to decide his son's future care needs. The settlement would leave a shortfall which his other children and grandchildren may have to take on in later life, he feared.
Approving the settlement offer, the judge said he appreciated the concerns and disappointment of Benjamin’s parents but he had to act in the best interests of the boy and believed the settlement was “in Benjamin’s best interests”.
Many who see the €32 million figure do not understand that the vast bulk of that is not compensation but is intended to provide care to the boy who has a life expectancy almost equal to anybody else, he said.
Children's University Hospital, Temple Street, previously apologised in court for the "failings" that caused injury to Benjamin and the consequent trauma for his family.
On a previous occasion, the court heard the boy suffered a brain stem injury when he was 11 months old which should not have happened.
Benjamin, one of identical twin boys, was born prematurely in Dublin and later underwent a procedure when 11 months old at the Temple Street to drain fluid on the brain. A shunt was inserted but he later returned to hospital vomiting and unwell.
The court previously heard shunt infection is a known complication of the procedure and the cause of the negligence was that for up to three days this possibility was not investigated and Benjamin got progressively worse.
Formerly of Knockmaroon Hill, Chapelizod, Dublin, now living in London, the child's case was against the hospital over his care in April 2011. He claimed the hospital was negligent about the investigation, diagnosis, management treatment and care of the shunt infection which he presented with on April 9th, 2011.
He was admitted on March 21st, 2011, for the shunt procedure and discharged home three days later.
It was claimed that between March 24th and April 15th of that year, the child sustained a complication of the shunt procedure, a shunt infection and was vomiting and was brought to the emergency department at the hospital.
Liability was admitted in the case.
In evidence previously, Miriam Gillick, who gave up a career in investment banking to look after her son, said Benjamin needed a lot of help to even play, whereas his twin brother was a bright child involved in sports and activities.
On Tuesday, Andrew Gillick wept as he told the court of his son’s “gruelling regime” of therapy for hours each day and that he needed two carers. Their figures for their son’s needs were not exaggerated, he said.
He had claimed the earlier proposed €22 million final payout would have a detrimental effect on his family and could leave them in “dire straits.”