High Court approves total settlement to boy of €32 million

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The High Court has approved a settlement of €25m in the case of a nine-year-old boy who was severely brain damaged after a failure to diagnose an infection when he was a baby.

It is the largest settlement in a case of this kind to be approved by the Irish courts.

It brings to more than €32m the total amount of the award after an interim settlement of €7.4m three years ago.

Mr Justice Kevin Cross stressed that only a fraction of the money - less than €500,000 - was compensation for the catastrophic injuries caused to Benjamin Gillick.

He explained that the majority of the award is for the cost of Benjamin's complex care, educational and accommodation needs for the rest of his life.

Yesterday, Benjamin's parents had pleaded with the judge not to approve a settlement offer of €22m, saying the money would run out and their son would be left without funds for his care as an adult due to his unusually high life expectancy for someone with his condition and the higher costs of care in London where the family now lives.

The judge agreed with the parents and the case returned to court late this afternoon for ruling on an increased settlement offer.

The parents told the judge they were still unhappy with the offer but Mr Justice Cross said he had to make a decision based on the child's best interests. If the case went to a full hearing there was a risk he could end up with a lesser figure, the judge said.

Yesterday, Benjamin's father told the court that the figures in their claim were real figures based on the actual cost of care for the past three years. The money has been and will be controlled by the Court of Protection in London and "every penny is accounted for".

Andrew Gillick broke down in tears a number of times as he told the judge of his son's "gruelling regime" of therapy for hours each day. He said yesterday's offer represented less than half their overall claim and stressed that their figures were based on an actuarial report.

"Our figures are open, honest and transparent, every penny of our interim payment has been disclosed," he said.

Benjamin's mother, Miriam, outlined to the court how it will require two and sometimes three carers as her son gets older to provide the appropriate care for him.

She also outlined his educational needs into the future and said while the family appreciated these were "massive sums" each case must be assessed on an individual basis.

She said it was their duty as parents to ensure there would be enough funds for their son for the rest of his life.

Three years ago Benjamin settled his action against Temple Street Children's Hospital in Dublin with an interim payout of €7.4m. The hospital also apologised in court for the failings that caused injuries to Benjamin.

Benjamin has cerebral palsy, is quadriplegic, and cannot speak, the High Court heard. He suffered a brain stem injury when he was 11 months old.

Benjamin, who is one of identical twin boys, was born prematurely in Dublin and later underwent a procedure at 11 months at Temple Street Children's Hospital to drain fluid on the brain. A shunt was inserted but he later returned to hospital vomiting and unwell.

The court heard that a shunt infection is a known complication of the procedure and the cause of the negligence was that for up to three days this possibility was not investigated.

Benjamin, of Knockmaroon Hill, Chapelizod, Dublin, but now living in London, had sued The Children's University Hospital, Temple St, Dublin, over his care in April 2011.

Liability had been admitted in the case and it was before the court for assessment of damages only.

Mr Justice Kevin Cross said the figures before the court yesterday and today represented "nothing in addition" for Benjamin and were to fund the cost of his care which amounted to very large sums.

He explained that when an injury is done to an innocent person it is required that they be put in the same position, in so far as money can do, as they would have been had the injury not occurred.

Therefore Benjamin was entitled to full care, aids and appliances, assistive technology and special education.

"So when the headlines come to be written it should be noted that no one is getting a bonanza," he said.

The judge said the reason the figure was so high in this case was because "thankfully he has a higher life expectancy and would have to be cared for long after his parents have departed". The judge said it was very difficult in 2019 to know what was going to be the situation in 55 or 60 years from now.

The judge said he had not approved yesterday's settlement offer because of concerns about the cost of future care but today he had approved the increased offer because he believed it represented the best interests of the boy, while also noting the disappointment of the parents.

Afterwards the family's solicitor Michael Boylan said Benjamin's parents had fought relentlessly on his behalf.

He said the family faced much higher costs of care, accommodation and education because they live in London. He said had the award been made in England it would have been far higher.

The family will also be taxed on some of the award because it must be invested, which would not happen here, Mr Boylan said.

Link - https://www.rte.ie/news/courts/2019/0508/1048257-high-court-settlement/