The courts are "gambling" daily with the welfare and lives of those who suffer catastrophic injuries because of the failure to legislate to ensure life-long care needs will be met, a High Court judge said today when approving a record €11.5 million settlement for a young boy left quadriplegic after a road crash.
Ms Justice Mary Irvine called for "urgent and prompt" attention to the need for laws providing for periodic payments in such cases when approving the lump sum settlement, the highest-ever made in a personal injuries action, in the case of Cullen Kennedy (10), of Corheen, Loughrea, Co Galway.
"The reality is the courts don't know when people are going to die," she said. "We are gambling every day."
Cullen suffered devastating injuries after what the court heard was a "momentary lapse of concentration" by his mother Margaret when, distracted by him while driving him to school on May 5th, 2008, her uninsured car veered onto the wrong side of the road and collided head-on with another car.
The other driver suffered minor injuries, and Mrs Kennedy suffered some injuries, but Cullen, who was restrained in a booster seat in the back of the car, suffered very severe injuries after his head hit the front windscreen. As a result, he is quadriplegic and will require 24-hour care for life.
Cullen's mother and grandmother play a large part in providing that care at his mother's rented home and are supported by nurses and special needs assistants who assist Cullen, who has no mental impairmnment and was described as a "lively and vivacious" child in attending school, the court heard.
Cullen, suing through his grandmother Monica Kennedy, had brought proceedings against his mother and the Motor Insurance Bureau of Ireland (MIBI). Under the agreed settlement,the MIBI will pay the judgment sum.
While stressing the settlement in this case was "excellent" as it was expected to meet all Cullen's lifelong care needs, Ms Justice Irvine said the continuing failure to enact laws providing for period payment orders involved injustice as some catastrophically injured persons would run out of funds for their care.
A second though lesser injustice due to the absence of legislation was that some catastrophically injured persons would die earlier than expected resulting in a "windfall" for their next of kin, she said.
The judge noted a Working Group on Periodic Payment Orders (PPOs) was set up by the president of the High Court, Mr Justice Nicholas Kearns, three-and-a-half years ago, chaired by Mr Justice John Quirke and including herself, and had reported unanimously in October 2010 that legislation was required to allow cases be settled on the basis of PPOs.
It was recommended catastrophically injured persons would get a sum to be paid annually for the rest of their lives, a system that would guarantee their care, she said. The President of the High Court, Mr Justice Quirke, and herself felt very strongly about this matter, she added.
She said the report was delivered in October 2010 to the last government and had been with the present Government since it came into power. While she had no doubt the Government has "very significant" issues to deal with, the absence of legislation had left the courts "gambling" with the security, welfare and futures of the most vulnerable litigants.
If injured persons lived longer than anticipated by medical experts, then they run out of money, raising issues about who will provide their future care and how it will be funded.
