Tuesday 21 November 2017

Cerebral palsy boy (8) awarded €665,000 for loss of future earnings

AN eight-year-old boy, who received a €1m settlement after being left with cerebral palsy due to medical negligence at his birth, was today awarded a further €665,000 for loss of future earnings.

Shane Kenny would have earned the money based on the probability that he would have taken over his father's farm in adulthood, the High Court ruled.

The court rejected a further claim for €2.3m representing the loss of the capital value of the 278 acres in Waterford which his father Martin said he would have passed on to him had he not been brain damaged at birth.

In November 2011, Shane, suing through his mother Catherine Kenny, Ballinlovane, Ballyduff, Waterford, partly settled an action for negligence against the HSE, for just over €1m, arising out of the circumstances of his birth on November 2, 2004, at Erinville Hospital in Cork.

Liability was admitted by the HSE which also apologised to the family.

Mr Justice Eamon deValera was subsequently asked to determine further damages based on what would be Shane's loss of earnings as a result of not being able to work because of his injury.

Today, the judge ruled he was entitled to €665,000 based on his finding that he would have taken over the family farm at the age of 28. The sum includes around €108,000 for loss of earnings from the age of 20 to 28 when he would have been expected to be working for his father or in another agriculture-related job.

The remainder was calculated on figures provided to the court relating to the income of the farm.

The judge accepted the the evidence of Martin Kenny (40) that he would have retired at 60 and given the farm to Shane as his eldest son.

Mr Kenny had also said he would have bought another farm for his younger son Cathal (5) while supporting his daughter Katie (2) "in whatever career path she might choose to follow", the judge said.

Using Mr Kenny's accountant's figures for farm income in recent years, the judge found the appropriate loss of earnings from 28 until Shane would have retired at 60 was around €630,000.

However, taking into account a previous Supreme Court decision which found risks such as illness, unemployment or redundancy should also be factored into the calculation, the judge said he would reduce both the

pre-28 and post-28 earnings by ten per cent, giving a total of €665,000.

It had been contended on Shane's behalf that had it not been for the wrongful birth injury, his interest in the farm would have been absolute, the judge said, entitling him to sell the asset, use it as collateral for finance or even to dissipate it.

The farm, made up of 168 acres owned by Mr Kenny and 110 acres leased from his parents and neighbours, has a current day value of around €2.3m, the court heard.

Mr (Martin) Kenny had told the court there was a longstanding tradition within the family of passing on the farm through generations and the claim by Shane for loss of inheritance would seem to be based on the assumption that he (Shane) would have sold it in his lifetime, the judge said.

It would be contradictory and illogical therefore to hold that this practice (of keeping the farm within the family) would cease at sometime in Shane's lifetime and that he would sell it and realise its capital value, he said.

He did not see, on the balance of probabilities, that such an event would occur and he would therefore not make an award for the capital value of the farm.

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