The HSE has failed in a High Court application to adjourn a significant action next week by a catastrophically injured boy for orders seeking to treble the value of his special damages claim to some €61 million.
Oran Molloy’s case, in which liability has been admitted, has “fairly far-reaching” implications for similar cases, Patrcik Hanratty SC, for the HSE, told High Court president Ms Justice Mary Irvine.
The 14-year-old boy is seeking a lump sum award of some €61 million for past and future special damages. This is based on a real rate of return on assessment of future loss of minus 3 per cent, not the current rate, set by the Court of Appeal in the 2016 Russell case, of 1½ per cent, and 1 per cent in the case of future care.
That would have a major effect on the valuing of the case because, under Russell, the amount would be some €20 million while, under the new proposal, it would be more than €60 million.
Oran, the court heard, would alternatively be happy to accept a periodic payment order (PPO) provided the sum was linked to wage inflation. However, that option is currently unavailable because, despite a 2010 recommendation from the PPO working group, the index necessary to create the link is still awaited.
The case arises from injuries suffered by Oran during his birth at Portiuncula Hospital, Ballinasloe, Co Galway on December 31st, 2006. His mother Deirdre Molloy was admitted to the hospital a day earlier at 32 weeks and four days gestation, with substantial antepartum haemorrhage.
When born the following day by emergency Casearean section, Oran was in poor condition and was later diagnosed with hypoxic ischemic encephalopathy with secondary diplegic cerebral palsy.
Suing through his mother, Oran, of Riverstown, Birr, Co Offaly, is claiming general and special damages, both past and future, for the remainder of his life over alleged negligence in the circumstances of the management of his delivery and birth.
The HSE earlier this month conceded liability but its lawyers this week sought a three to five year adjournment of the case, listed for hearing next week, for reasons including its concern that the current uncertainty over investment returns might result in the boy being over-compensated.
It argued the consequence of current “historically and abnormally low” interest rates is that any lump sum payment based on those rates will discount at “too low a rate”, potentially resulting in “significant overcompensation” to the plaintiff.
The High Court should not, at this time, revisit the real rates of return approved in Russell because, in three to five years, when the case might proceed to a final hearing, more “usual” interest rates are likely to prevail and the PPO option might also be available, it was argued.
Mr Hanratty stressed Oran would receive interim settlement payments, either in sums proposed by it of between €4.6 million and €4.9 million, or as set by the court. The boy, represented by Jonathan Kilfeather SC, instructed by Michael Boylan Litigation, opposed any adjournment.
Neither just not fair
It was argued the HSE had been advised from the outset that the real rate of return would be a significant issue in the case. It was also argued it was neither just nor fair that this claim should be postponed in the expectation that new legislation might be introduced to correct deficiencies relating to PPOs.
In her judgment on Friday, High Court president Ms Justice Mary Irvine refused the adjournment.
The interest rate arguments are neither a valid nor appropriate basis for an adjournment and this application was an attempt to “pre-empt” the trial of an issue the plaintiff wants decided, she said.
Given that there is only a five year difference between experts for the sides concerning Oran’s life expectancy, there was no real uncertainty as to the nature and costs of his needs.
While a PPO would be better than a lump sum as it would rule out the risk of the boy ever running out of funds, there was no guarantee that would be available even in three to five years.