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Boy (8) brain-damaged at birth to get €13.5m

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

It brings to €15.9m the total awarded to Gill Russell, making it one of the highest ever awards in a personal injury case.

In 2012, a 10-year-old Galway boy was awarded €11.5m after being left quadriplegic in a road accident.

Gill suffers from dyskinetic cerebral palsy and has to use a wheelchair arising from catastrophic injuries at birth

The award is also groundbreaking in that money for future care and expenses has usually been awarded by Irish courts on the assumption that the fund would earn interest when invested at a rate of 3pc a year with a built-in discount to allow for that.

Yesterday, however, Mr Justice Kevin Cross fixed the rate of return or discount in Gill's case at 1pc, meaning future awards in such cases will be higher.

Gill's mother, Karen Russell, of Aghada, Co Cork, who had pleaded with the court to award a lump sum payment for future care needs rather than await new laws on periodic payments in these cases, broke down after the judgment.

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

At that time the HSE and Cork University Maternity Hospital apologised as part of the part settlement.

Through his mother, Gill 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 that Gill was born 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.

unfair

Mr Justice Cross said more than 10 days of the case were taken up dealing with the rate of return on the investment, where Gill's side argued that calculating at 3pc was unfair and involved an investment in equities which was risky.

The HSE submitted 3pc was reasonable and the money would be invested through the Courts Service in a mixed fund which historically has proved to be capable of producing a 3pc return in the long term.

Fixing the rate in Gill's case at 1pc, Mr Justice Cross said there was no doubt that by utilising a rate of 1pc the total award to Gill will be considerably greater than otherwise.

In a statement issued through the family's solicitor later, Ms Russell said she has had to fight since her son's birth for what he was justly entitled to.

"Gill is a delightful, happy young boy who is an inspiration. I am delighted that Gill and our fight have been vindicated here today," she said.

It was a matter of regret that the HSE did not settle "a long time ago".

The family's solicitor, Ernest Cantillon, said it was a very significant decision.

"Up to now the State Claims Agency and the insurance industry expected the victim to carry the risk of investment strategies, so that awards have been down," he said.

"The court has now taken the brave decision to ensure the victims no longer carry that risk of investments going down. The insurance industry and the wrongdoer will have to carry that risk."

The courts have decided the proper approach is to let plaintiffs invest in risk-free investments and, as a consequence, that means they have to get more money when they come to court, he said.

hnews@herald.ie


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