Award of €735,000 affirmed in respect of accommodation for child with cerebral palsy

MacMenamin J (nem diss): Medical negligence during delivery of baby - asphyxiated during birth - cerebral palsy - most heads of damage agreed - special accommodation expenses - award of €735K in High Court under heading - cost of new property agreed at €875K - adaptation of new property to meet plaintiff's needs - value of family's old home agreed - whether value of family home to be deducted - whether gross or net of mortgage - question of potential benefits accruing to plaintiff's family - how to avoid detriment arising from shortfall in damages making it necessary to take other sums for purchase of property - multiplier - capital value - whether too much emphasis in case law on avoiding windfall gain to family - existing obligation on parents to provide accommodation to plaintiff and other children - relevant factors - plaintiff who has bought or intends to buy accommodation needed to meet a disability - evolution of case - whether High Court erred in assessment - changes in position of parties between trial and appeal - whether injustice done.

"In fact, there is no, one, exclusive method of assessment appropriate to every circumstance in a situation of this kind. However, there is always one proper criterion by which the adequacy of a particular method may be judged. It is, whether or not the result of the assessment fairly makes good the financial loss incurred. By adopting this principle, the law establishes a proper measure of compensation for pecuniary loss. The actual process of assessment can only then be a matter for reasoned estimation and computation."

"In conclusion, I would reiterate, this judgment does not, and cannot, create any new paradigm for calculation of damages in these cases, still less does it create any further burden on indemnifiers. The Court is simply faced now with arriving at a just adjudication on one single case. To my mind, although the approach was unusual, the outcome achieved proper compensation without injustice to either party. I would not, therefore, interfere with the learned High Court judge’s decision."

Clarke J (concurring): Appropriateness of result - whether more satisfactory basis upon which to approach damages arising from need for enhanced accommodation - principle that plaintiff is entitled to full compensation for all losses suffered as result of wrongdoing - not entitled to be over-compensated - likelihood of windfall gain for plaintiff's family where new property has to be bought and adapted - true cost of providing accommodation - whether "one size fits all" approach available - cost of renting property - practical considerations - whether there was a market for specially adapted accommodation - actuarial calculation based on life expectancy of plaintiff - instances where rent-based approach might lead to greater award of damages than purchase of property - question of providing for other family members.

"Viewed in that way the true cost of providing for accommodation is the cost that would be required to rent what ever type of accommodation might be considered necessary. Any additional cost involved in purchase is not truly the cost of providing accommodation but rather is the cost of acquiring an asset. It is for that reason that I consider there to be strong arguments in favour of the proposition that at least the starting point for a consideration of the appropriate damages to be awarded in respect of accommodation needs should be based on the cost of renting appropriate premises."