What is the Fairest Approach for Plaintiffs When Claiming Compensation?
The introduction of the Civil Liability (Amendment) Act in 2017 has altered how Plaintiffs are awarded damages in catastrophic injury cases.
The aim of the amount of compensation, or damages, awarded to a plaintiff is to place the plaintiff in the same situation they were in had the incident never occurred. The court considers several factors when assessing the amount of compensation to give to a plaintiff:
- The pain/suffering which can lead to loss of quality of life or enjoyment of the plaintiff.
- Loss of earnings due to the injury suffered.
- Loss of future income.
- Future medical care and bills.
Awarding damages as a Lump Sum:
The traditional approach to compensating plaintiffs was to award them damages in the form of a lump sum of money. This requires the court to estimate the plaintiff’s life expectancy in order to calculate their compensation for future medical care. This can result in a plaintiff being underpaid if they outlive their life expectancy or overpaid if the plaintiff dies before their estimated life expectancy.
Periodic Payment Orders:
The Civil Liability (Amendment) Act 2017 (‘the Act’) was introduced to rectify these issues with lump sum payments to plaintiffs. Under the Act, the Irish courts can award a plaintiff a Periodic Payment Order (PPO) in cases of catastrophic injuries. The court can order damages be paid to the plaintiff for future medical treatment in periodic instalments, rather than in a lump sum.
When determining whether a PPO is appropriate, the court will assess whether it is in the best interests of the injured person. The court will take into consideration the nature of the plaintiff’s injuries and the form of award that would best meet their needs.
A PPO will contain the amount of money awarded to the plaintiff and the frequency and method of how these payments will be made. A PPO will state that the payments must be made to the plaintiff throughout the course of their life and that the annual amount awarded will be adjusted according to the Harmonized Index of Consumer Prices.
A PPO may also contain a provision known as a ‘stepped payment’ provision, meaning that the amount of money being awarded each year may vary based on any changes occurring in the plaintiff’s circumstances throughout their life. Although the Act attempts to account for changes in the cost of living and the life expectancy of the plaintiff, the recent decision of the High Court in Hegarty (minor) v Health Service Executive has displayed that PPO’s may not be the fairest method of compensating plaintiffs in all cases.
Hegarty (minor) v Health Service Executive
The case of Hegarty (minor) v Health Service Executive challenged whether a plaintiff is obligated to adhere to the provisions of the Act.
Judge Murphy determined in her judgement that any plaintiff that suffers catastrophic injuries is entitled to be compensated to the extent of 100% for the loss and damage occurred, damages are paid by a once off lump sum calculated referring to the plaintiff’s lifetime needs established as a matter of probability, and that where the court is unable to determine the plaintiff’s future financial needs the court can award an interim award and adjourn the consideration of the plaintiff’s future needs.
This decision has highlighted the practical difficulties of using the HICP index to calculate the amount of compensation awarded to plaintiffs. PPO’s appear to financially benefit insurance companies as they will make gradual payments to plaintiffs instead of paying a substantial lump sum payment. A consequence of a PPO is that the Irish Courts do not have the power to make a variation order, meaning that a plaintiff is unable to return to the court following a deterioration in their condition which may result in increased medical costs. It appears that the 2017 Act will need to be amended to be fit for purpose.
For further queries in relation to any litigation matter do not hesitate to contact Donna Phelan or Brendan Dillon on 01 2960666.
