Yesterday’s settlement provides a template for a new way of addressing catastrophic personal injuries
IN APPROVING a “structured settlement agreement” yesterday the president of the High Court, Mr Justice Nicholas Kearns, was bringing a step closer a new way of dealing with how damages are paid in catastrophic injuries cases. Ireland is one of the few countries which does not have provision for providing for such cases on an ongoing basis.
Mr Justice Kearns outlined his concerns about this issue recently. He pointed out that in such cases the person suffers an accident that renders him or her permanently disabled, and may shorten their life. The problem is that it is difficult to predict life expectancy, and what kind of care may be needed or, indeed, available in the future.
Up to now damages in personal injury cases were awarded on a one-off or lump sum basis, reflecting an attempt by the courts to ensure that a claimant is adequately compensated for the damage done and for the injuries suffered. While that worked in cases where the person was going to make a reasonable recovery, it was not satisfactory in many cases of catastrophic injury.
Mr Justice Kearns has pointed out that the courts attempt to calculate the cost of the plaintiff’s future care based upon evidence of estimated life expectancy. This exercise involves an amount of informed guesswork, undertaken by medical practitioners and actuaries who take a “snapshot” of the plaintiff’s current care costs and project them into the future.
This was unsatisfactory for a number of reasons. The injured person might live longer than expected, but run out of the means of support. He or she might die earlier than expected, providing an unintended windfall in inheritance for a relative. He or she might also invest the award unwisely, and be left without adequate means of support.
These were some of the reasons why Mr Justice Kearns set up a committee, under the chairmanship of Mr Justice John Quirke, to consider the matter, and this will prepare a report for the Government and also make proposals for the courts on the issue. It is expected to report by the end of the year.