Boy left severely disabled at birth awarded €13.5m

A severely disabled eight-year-old who suffered brain damage at birth has been awarded €13.5m by the High Court to cover his care for the rest of his life.

Boy left severely disabled at birth awarded €13.5m

The award was made to Gill Russell, Aghada, Co, Cork, who has dyskinetic four-limbed cerebral palsy, and brings to €15.9m the total award to the boy over the catastrophic injuries he suffered at birth.

This also makes it one of the highest awards so far in a case of this kind.

Mr Justice Kevin Cross, who had spent weeks hearing evidence in the case, said he believed €13.5m towards future care is a reasonable sum, fair to both sides.

In his judgment, Mr Justice Cross said Gill is totally dependent for every need on a 24-hour basis, requiring full-time care and assistance for his lifetime as well as aids and appliances to make his life as reasonably normal as possible.

Gill’s case is also a ground-breaking test case. Monies for future care and expenses have usually been awarded by the Irish courts on the assumption that the monies for the future care and expenses will gain interest of 3% per annum when invested. There is an in-built discount to allow for that.

Mr Justice Cross yesterday fixed the rate of return or discount in Gill’s case at 1% compared to the more usual 3% previously factored in.

Legal sources said the Cross decision will have implications for future cases.

Gill’s mother, Karen Russell, who had pleaded with the court to award a lump sum payment for her son’s future care needs given the continuing absence of the necessary laws allowing for periodic payments for the catastrophically injured, broke down with tears of relief after the judgment.

Gill’s case was adjourned two years ago with an interim payout of €1.4m in anticipation of the legislation.

At that time, the HSE and Cork University Maternity Hospital apologised to the then 6-year old boy as part of the partial settlement of the case.

Gill cannot walk, suffers from dyskinetic cerebral palsy, and is confined to a wheelchair.

Through his mother, he sued the HSE alleging negligence in the circumstances of his birth at the Erinville Hospital, Cork, on July 12, 2006. Liability was admitted and the case was before the court for assessment of damages only.

It was claimed Gill was born at 8.36am after an alleged “prolonged and totally chaotic” delivery. He had a severe shoulder dystocia and was born after his mother had a symphsiotomy.

He was transferred to Cork University Hospital where he remained for two months. The court heard he will always be unable to walk and does not have function in his arms but can communciate and learn with the aid of a special computer which responds to his eye gaze.

In an apology read to the court last October on behalf of the HSE and Cork University Maternity Hospital, the defendants offered sincere apologies for the pain and distress experienced by Gill and his family following his care and delivery.

In his judgement, Mr Justice Cross said more than 10 days of the case were taken up with the real rate of return where Gill’s side argued that calculating at 3% was unfair and involved an investment in equities which was excessively risky.

The HSE submitted that 3% was a reasonable return and the money would be invested through the Courts Service in such mixed funds which, historically, have proved to be capable of producing a 3% rate of return in the long-term.

Fixing the rate in Gill’s case at 1%, Mr Justice Cross said there was no doubt that, by utilising a rate of 1% rather than 3%, the total award to Gill would be condsiderably greater than otherwise.

Mr Justice Cross, who said he had the benefit of seeing the video recording which showed aspects of Gill’s daily life, said it was clear that the boy “will be dependant on care for 24 hours of the day, everyday, for all of his life.”

The judge also ruled that Gill should have a full-time night carer on a waking basis as well as two carers throughout the day.

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